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October17, 1994 Council Meeting October 17, 1994 The regularly scheduled meeting of Mayor and Council was held October 17, 1994, at Smyrna City Hall. The meeting was called to order by presiding officer Mayor A. Max Bacon at 7:30 o'clock p.m. All council members were present. Also present was City Administrator Bob Thomson, City Clerk Melinda Dameron, City Attorney Charles E. Camp, Assistant Fire Chief Jimmy Bivins, Finance Director Jim Triplett, Assistant Public Works Director Ray Curtis, Major Kent Sims of the Police Department, Library Director Laurel Best, Parks and Recreation Director Steve Ciaccio, Community Relations Director Kathie Barton, Clean and Beautiful Coordinator Ann Kirk, Personnel Officer Chris Corey, City Engineer Ken Hildebrandt, Chief Building Official Scott Stokes and representatives of the press. .... Invocation was given by Ed Clack, Sr., pastor of Central Baptist Church, followed by the pledge to the flag. Mayor Bacon asked Councilman Ron Newcomb to read a proclamation honoring Poppy Day. Mayor Bacon asked the members of the American Legion Women's Auxiliary who were present to come forward. A representative came forward to accept the proclamation recognizing Poppy Day and received donations from each of the council members. CITIZENS INPUT: Mayor Bacon asked if there were any citizens present who would like to comment during the Citizens input section of the meeting. Mayor Bacon recognized Joan Morris who was present on behalf of the Friends of the Smyrna Library and asked that everyone support their group at the upcoming Fall Festival, October 22 and 23, by visiting the book sale booth. Ms. Morris also announced there will be a meeting of the Friends of the Smyrna Library on October 20 at 7:30 p.m. and urged all interested persons to attend. Mayor Bacon recognized Ken Nichols, candidate for the House of Representatives, District 29, office. Mr. Nichols reminded everyone that the election is only three weeks away and urged everyone to vote . their convictions. Mr. Nichols announced he will end his campaign after the election on November 8 at Howard's and invited everyone to attend. He also announced he supports the City's referendum to build a new public safety facility which is on the ballot for November 8 and congratulated the city for accepting the grant from the Federal Government to help the police department. ~ Mayor Bacon recognized Marnie Stampley who asked about Amendment 6 of the proposed revision to the land use map. Mayor Bacon told Ms. Stampley that item would be discussed during the regular council member and she would have an opportunity to speak during that portion of the meeting. Mayor Bacon recognized Randy Deremer, 1220 Pinehurst Circle, who had questions about his recent tax bill. Mr. Deremer specifically asked how his tax dollars are used by the city and wondered about some of the benefits he received for his tax dollars. He also indicated he thought the police and fire services were similar to what the county provides to unincorporated Cobb. Mayor Bacon responded the tax dollars are used for more than fire and police protection and is used for other things. He also eXplained the city residents receive a break on the county taxes as they pertain to the fire district due to our excellent fire rating. Mayor Bacon also stated that the city has been attempting to have the county establish a police tax district which would relieve the tax payers of Smyrna from having to pay taxes on services they don't receive from Cobb County. Mayor Bacon then stated that basically the taxes are used for police and fire protection, public works issues, parks and recreation, library, community center, roads, water and sewer, etc. Mr. Deremer stated he thought the amount of the tax dollars compared to the breaks he receives from Cobb County are excessive. ..... Councilman Wood asked Mr. Deremer what he meant by the hreaks he receives from Cobb County. Mr. Deremer replied that based on a $100,000 home, the break is only equal to ahout $90 and the Smyrna tax amount is equal to approximately $450. Councilman Wood then asked Mr. Deremer what he receives from the county versus what he receives from the city. Mr. Deremer then stated that is what he was trying to understand the difference in what he pays in taxes as opposed to one of his neighhors who lives in unincorporated Cohh County. Councilman Wood stated Cobb County does provide certain services as does Smyrna hut indicated the County does not provide fifteen parks in the city of Smyrna, a library comparable to the city lihrary, a October 17. 1994. meeting. - continued community center and their response time for emergency vehicles is much greater than the city is able to provide. Mayor Bacon stated he also pays Cobb County taxes for services he does not receive as a resident of the City of Smyrna. He also stated he has no problem paying city taxes as he knows he will receive those services from the city. Mr. Deremer stated his county taxes. excluding schools, were only $210. The council then asked Mr. Deremer what services he received from the county. Mr. Deremer stated he assumed the roads were provided by Cobb County. The council responded the roads in the city of Smyrna are maintained by the City and are not provided by Cobb County. - Councilman Lnenicka stated an article was published in the Atlanta Journal in May of this year that cited police response time in Metro-Atlanta and the response time for the city of Smyrna was much faster than that of the Cobb County response time. Mr. Lnenicka stated the quicker response time had nothing to do with the qualifications of the officers, it simply had to do with the density of the officers per square mile which is much higher in the City because the city funds the extra officers in order to provide quicker response time. He also indicated the emergency services in the city of Smyrna are more available to city residents than in the county. Mr. Deremer thanked the Mayor and council for their information and asked if he could meet with someone later to discuss the matter a little more in detail. Councilman Hawkins indicated he would be glad to meet with Mr. Deremer. Councilman Hawkins stated he would like to share an advantage of living in the city of Smyrna with Mr. Deremer. He then indicated he had a petition from the people who live on Pinehurst Drive and Pinehurst Circle who requested a four-way stop sign at the intersection of Pinehurst Circle/Pinehurst Drive and King Springs Road. Mr. Hawkins stated the request was made at the October 3 council meeting and it is an item for approval on tonight's agenda. Mr. Hawkins stated the situation of city residents paying dual taxes is found all through the United States and stated the City of Smyrna was chartered in 1878 and the county was formed in 1834 and the only thing counties in Georgia were formed to do was to maintain a county road system, court system, sheriff's department and that is all counties were required to do under Georgia law. He then stated local communities, such as Smyrna, at some point in their past decided they wanted to group together as a community and provide their own services and received a charter from the State which allowed them to tax their citizens in order to provide those services. Mr. Hawkins stated the county was authorized by the legislature in the 1950's to collect taxes for the services outlined above and the duplication of taxes is an issue that should be resolved at the Legislature. Mr. Hawkins also stated this issue has been brought up during numerous legislative sessions and has always been defeated by the Legislators. He also stated the City was collecting taxes for services long before the county was authorized to do so. .." PUBLIC HEARINGS: (A) Variance Request - 2482 Spring Road - Chain Link Fence in Front Yard Mr. Thomson stated National Auto Sales is requesting this variance because of theft problems. He then stated Mr. Peterson, the applicant, states in his letter of hardship they have had some thefts that he feels a front fence or enclosure would solve. Mayor Bacon asked if Mr. Peterson was present and announced this is a public hearing and asked if there was anyone present in opposition to the granting of this variance request. Mayor Bacon recognized a group of citizens and asked if they had a spokesperson. Mayor Bacon then asked those who wished to speak during this portion of the meeting to step forward and be sworn in by City Attorney Charles E. Camp. WIllI Mayor Bacon asked Mr. Peterson to explain why he was requesting this variance. Mr. Peterson explained he is asking for permission to chain link fence his back area and come around with a chain fence in the front in order to secure his property. He then stated he has had a lot of theft problems on the back side of his property by people who are able to enter the property from the back. He stated he is simply trying to deter that. He also stated he has put lights on the lot which has helped some but is still losing property on the back side of his lot. He further stated the zoning is such that all he can fence is a small portion of the back yard therefore limiting the space he has in the back and all he is asking is to be allowed to utilize the back area and not cut it in two with a fence. October 17. 1994. meeting: - continued Councilman Newcomb asked for the purpose of clarification if his place of business is on a corner lot and Mr. Peterson responded that was correct. Mr. Newcomb then stated the Ordinance says that the side of Mr. Peterson's property facing both of those streets is considered a front yard and therefore he is requesting a variance to put up a fence in the "front yard"; that is on one of the streets which would be on the Woodruff Drive side not Spring Road. He then asked Mr. Peterson what he proposed to do on the Spring Road side. Mr. Peterson responded he would like to erect a fence with 3' posts with chains through them and that it would be more of a decorative type fence. - Councilman Newcomb asked Mr. Stokes if that proposal for the front would require a variance and Mr. Stokes responded it would not. Mayor Bacon asked Mr. Peterson if he was having problems with people stealing the cars and Mr. Peterson responded he had lost about five cars from that lot. Mr. Peterson then eXplained that was the purpose of putting up a fence because the people are coming in from the back side because the building hides them from the street. Councilman Newcomb asked Mr. Peterson about the Spring Road front, where he is proposing to put a decorative fence, what is the purpose of that fence. Mr. Peterson responded that would secure the lot in the front and would prevent anyone from driving the cars out; it would not prevent anyone from entering the lot from the front. Councilman Lnenicka then asked Mr. Peterson if that type fencing would be appropriate for the entire lot. Mr. Peterson indicated it would not and stated the cost of the "decorative fence" is much higher than the chain link fence. City Attorney Chuck Camp asked if the lO' alley behind the property would continue to exist. Mr. Peterson responded it would and they would fence right up to the alley. Councilman Lnenicka asked how far down on Woodruff Drive would the chain go. Mr. Peterson stated he was proposing to go with a 6' chain fence down through the trees on the Woodruff Drive side and going with a 6' chain link fence for a short period and then going with a 4' for approximately twenty feet -- and then pick up with the chain. Councilman Lnenicka then asked how far from either Spring Road or the front of the building would that chain start or would it be chain all the way down the side of the building, or would it be chain link all the way up to the corner. Mr. Peterson responded he has a parking area and a grassy area and the chain link would basically go on the grassy area then he would put up the poles with chains around the front. Mr. Lnenicka asked him if he knew approximately how many feet that would be and Mr. Peterson responded he did not but it should be indicated on the plat in the package. Councilman Newcomb stated the Mayor and Council just recently passed an Ordinance that is affecting Mr. Peterson. One is to define a corner lot is having two front streets and also to say that people can not put chain link fences in the front yard. He further stated the only reason such a variance would be considered would be if the hardship was very overwhelming and he frankly did not feel that was the case in this instance. Mr. Newcomb stated he did not understand why the fence he proposed for the Spring Road side would not be suitable for the other side as well. Mr. Peterson stated it would secure the property from people driving cars off but would not secure the property from people coming in off the street stealing tires, radios and those types of things on the back part of the property. He stated he was simply trying to keep people off the back part of the property. Mr. Peterson stated he has a repair maintenance facility located on the back portion of the property and that he performs maintenance on all cars before they are placed on the lot for sale and it is not uncommon to have as many as fifteen cars in different stages of repair on the back part of the lot. He then stated he has probably lost as many as thirty to forty radios in the two years he has been in business and has had several cars vandalized. ... Mr. Bill Carroll, past president of Hampton Place Homeowners Association which consists of the only residences on Woodruff Drive, stated the subject property serves as the front yard to those residences. Mr. Carroll stated they have no problem with the chain, per se, going around the perimeter of the property but they do have a problem with a chain link fence. Mr. Carroll stated the Mayor and Council as well as the residents on Spring Drive have been working diligently and trying to improve and enhance the Spring Road area and he is very encouraged with the progress they have made so far and feels this action would be a reversal of what they are trying to achieve. Mr. Carroll further stated the Spring Road Improvement Group has talked about extending the architectural guidelines that are within the downtown area and applying them to the Spring Road area. He stated he was sure the elected body would not want October 17. 1994. meeting - continued chain link fences installed in the downtown area. He further stated he hoped the citizens would support the 1 (1{1 road tax referendum which would allow Spring Road to become a nice four-lane boulevard with a center median which will enhance and improve the applicant's business and hopefully he will realize there is no need for a chain link fence. Mr. Carroll also stated he felt there was too much repair work being done on the subject lot and stated he did not feel the neighbors needed a fenced in repair area with a guard dog and felt it was the wrong step to be taken. Mr. Carroll then presented the Mayor with a petition signed by fifteen of the residents who are against the fence and asked the council for their support in denying this request. Mr. Peterson stated they have no intention of encompassing the entire lot in fences or putting a guard dog in the lot. He further stated all he is trying to do is secure the hack part of the property. He then stated the Kindercare located behind him does have a chain link fence going down the frontage of Woodruff Drive such as what he is requesting to install and that he is not looking at doing anything as far as unsightliness to the property or anything like that. He also stated the cars he is working on are his cars and that he has two lots for which he supplies cars. - Councilman Lnenicka asked Mr. Peterson if there was any other style of fence, either wood or metal or any other type, other than chain link that could be used. He also asked if there was some other type of fence on the frontage of Woodruff Drive that would be more attractive and less objectionable and yet still allow him to secure the back portion of his lot. Mr. Peterson stated he would assume he could put up a 6' fence or some other type of fence but the plain chain link fence is the most economical. Councilman Newcomb that would not be permissible as 4W' is the height limit that would be allowed. Councilman Scoggins asked Mr. Peterson how close his property is to Auto Coolon Spring Road. Mr. Peterson stated he is approximately two miles from that location. Councilman Lnenicka asked Mr. Peterson if a four foot wooden fence would do the same thing as what he is requesting. Mr. Peterson responded it would not as people would just hop over the fence. Councilman Lnenicka asked Major Sims to have the police cars stop in more frequently than in the past. Mr. Lnenicka stated he would like to see some other type of fence that would be more appropriate. ~ Councilman Patrick stated while he sympathized with Mr. Peterson's problems he felt he needed to respond to the citizens of Woodruff Drive and therefore made a motion the variance request for a chain link fence in the front yard of the property located at 2482 Spring Road be denied. Councilman Newcomb seconded the motion. Motion to deny the variance request was approved 6-1 with Mr. Cramer opposed. (B) Rezoning Request - 3215 Atlanta Road - Rezone Property from G.c. and R-20 to RM-12 (Condomini ums) Mr. Thomson stated this request is being made by Crowe, Ingram Trust for the 9.183 acres they own on Atlanta Road. The tract has been annexed into the City and the owners are asking for RM-12 zoning to build 112 condominium units. Mayor Bacon stated this is a public hearing and asked if there was anyone present in opposition to the granting of this rezoning request. Mayor Bacon stated those who wished to make comments need to be sworn in. He then asked those would like to speak to come forward and be sworn in by City Attorney Chuck Camp. Councilman Lnenicka stated there was a meeting held in the spring of this year to discuss a proposed development not only on this property but also across the street on Creatwood Farms. He then stated things did not work out on the Creatwood Farms side of the property but what is being proposed tonight is basically what was discussed with the citizens six months ago. He indicated it is the same builder and same developer here tonight to present the same plan that was discussed at that time. ..... Mr. Tim Tise, Vice President of Realty Development Corporation, came forward and stated that he heard 112 homes were planned to be built but there are only 108 homes on 9.156 acres at 3215 Atlanta Road and they are requesting a rezoning from General Commercial and R-20 to RM-12 for the purpose of building those 108 condominium homes. The resulting density would be about 11.8 homes per acre and the name of the community will be Vinings Forest Condominiums. Mr. Tise reported their site plan calls for nine buildings with twelve homes per building and there will be six different noor plans ranging in size from 1147 square feet to 1737 square feet heated, total footage including garage and storage ranges October 17, 1994, meeting - continued ... from 1352 square feet to 2290 square feet. He indicated there will be both garden and town house style homes and all homes except eighteen of the terrace homes will have a garage, either one or two car. He indicated the prices of the homes are expected to be in the nineties, the low one hundreds and there will be a fence around the entire property. He further indicated that along the front property line there will be a fence with brick columns and wrought iron fencing, and around the rest of the property there will be a six foot chain link vinyl coated fence (black vinyl); there will be a homeowner controlled privacy gate at the entrance and a swimming pool. As far as the site drainage is concerned, there will be a detention pond at the rear of the site at a low point near the railroad track. Mr. Tise presented a picture of the development. Mr. Tise mentioned the 75-foot setback in the front, which is part of the trolley car right-of-way is necessary in order to ensure an opaque barrier between the properties. He also indicated a landscape plan which shows six to eight foot Loblolly pines as well as some ten-gallon and three-gallon pine trees which will give a stepped effect and the ultimate goal is to have an opaque buffer on the side. Mr. Tise reported nearly all the trees on the property can be saved in the thirty-five foot buffer area. Mr. Tise indicated they are also requesting a variance on the northwest side of the property to reduce the buffer requirement to 10 feet. Mr. Tise stated Ms. Kirk, Smyrna Clean and Beautiful Coordinator, has asked their development to incorporate a recycling plan and they have agreed to do that. Mr. Tise stated the plans are to close on the property the end of this year and construction is to begin in late spring or summer of next year and sales would start in February or March. Councilman Newcomb asked Mr. Tise to describe the plans for the detention pond. Mr. Tise responded all the detention from the whole site will be routed back to that area and it will be fenced and will be a natural area and will conform to all city requirements. City Engineer Ken Hildebrandt stated the city requires that the detention for the 100 year flood plan is such that the runoff from the pond is no greater than is existing, therefore the engineer will have to design it for that. Mr. Newcomb then asked if he could give him a size in terms of the outlet, which he thinks is a key factor. Mr. Hildebrandt indicated he believes there is an existing culvert under the tracks at this time and the size of the outlet pipe will vary depending on the size of the pond. He stated the pipe could be either a 24" or 36" pipe but the outflow can be no greater than is existing. Mr. Newcomb then asked if Mr. Hildebrandt would have to approve the engineering plans for the detention pond and Mr. Hildebrandt responded that he did and Mr. Newcomb stated he would like to be involved in that process as it takes place. .. Mr. Newcomb asked Mr. Tise about the plans for a homeowners group and the tranSItIon from builder/developer to homeowner. Mr. Tise responded stated they will be doing a first phase consisting of thirty-six homes and once the first home is closed there will be a homeowner's association created at that point and typically there are developer appointed officers and directors until it becomes large enough for the homeowners to elect their own board. He also stated there is a one-year builder's warranty and FHA construction which will be a two-year systems/lO-year structural warranty on the property. Mr. Winn Huff, speaking on behalf of the homeowners at Cumberland Vail Townhomes, stated he would like to read a two-sentence petition, signed by over three-quarters of the homeowners of Cumberland Vail. Mr. Huff read the following petition: "The following Cumberland Vail Homeowners are in favor of the rezoning of the property directly north of our complex. In support of this rezoning request, we ask your consideration of the following: 1. In order to maintain our property values and the natural beauty of this land, we ask that the existing trees within fifty feet of the adjoining property lines be protected and preserved." Mayor Bacon asked Mr. Tise if what the homeowners are asking can be done and Mr. Tise responded there is one tree that is leaning aggressively toward one of the proposed buildings and they will do all they will do all they can to preserve and protect all the trees they can. .. Mr. Huff stated he was concerned about the retention pond and the drainage in the direction of the Cumberland Vail Townhomes and would like to be kept informed of the grading and drainage plans and would like an opportunity to provide input as the development progresses. Councilman Lnenicka asked Mr. Huff to present the petition to Ms. Dameron, the City Clerk, to be made a part of these minutes. Mr. Lnenicka then asked City Engineer Ken Hildebrandt if a builder is required, under ordinance, to not increase the runoff onto adjacent property. Mr. Hildebrandt stated the requirement is for the overall site that the runoff can not be increased. It is October 17. 1994. meeting - continued possible that the runoff can be increased on a certain portion of the site and he has not seen the topography to see if a certain part of the drainage will be running off on their property but he will certainly try to consider their wishes. Mr. Lnenicka then asked Mr. Tise if it was possible for them to accept a stipulation to the zoning that would state something to the effect that the runoff toward the south (Cumberland Vail) would not be increased over the natural runoff that is there now. Mr. Tise responded that was correct and the plan is to pipe all drainage to the detention pond. Mr. Lnenicka asked Mr. Tise if he could give the city any guarantees or promises the drainage would not become a problem. Mr. Tise stated he has been told by their engineers that this is a zero runoff situation; there will be storm drainage and everything will be pumped back to the detention pond at the back of the property; the parking lots would have storm drains to catch the water all along the buffer and take it back toward the north and east. ..... Mr. Lnenicka asked Mr. Huff if he thought that was acceptable and Mr. Huff responded that was certainly something they would enjoy having. Mr. Tise stated that within the buffer area on that side. there would not be drain right at the property line but that will be just as it is now and not disturbed. Mr. Lnenicka asked Mr. Tise about the landscape plans and Mr. Tise responded they are still under development but basically they are trying to achieve an opaque screen which will be accomplished by the planting of Loblolly pines and some flowering bushes but basically the 35 foot buffer will be made up of a screen. Mr. Lnenicka then asked how far off the property line would the vinyl coated chain link fence be located in terms of allowing access for maintenance without getting on the Cumberland Vail property. Mr. Tise responded it will be near the property line but probably set back enough to allow someone to walk down the fence to maintain it. Mr. Lnenicka then asked about the lighting in the complex. Mr. Tise responded they will be using Georgia Power lighting and they have been told the lights will be designed to make sure the lights do not shine into the new development homes as well as the Cumberland Vail homes. Mr. Lnenicka then asked about the parking of recreational vehicles. boats. etc., outside the garages and asked if that would be covered in the covenants. Mr. Tise stated they have no problem with doing that and it could be a stipulation. He then said if someone had a boat that could go into the garage, as long as it was enclosed, that would be acceptable. Mr. Lnenicka then asked if ..... there was anything that could be done to limit the number of rental units. Mr. Tise stated their intent is to sell the homes as single family homes with prices ranging from the nineties to low one hundreds. Mr. Lnenicka stated this project has been in the works for a year and Realty Development has invested a lot of time in this property and the city appreciates their willingness to come to Smyrna. Mr. Lnenicka then made a motion to approve the rezoning request at 3215 Atlanta Road from a mixture of General Commercial and R-20 to R-12 Condominiums with the following stipulations: 1. The drainage plan for this property incorporate the necessary means and measures in particular on the south side of the property to prevent any additional runoff heading into the property owned by the Cumberland Vail home owners on that site from this proposed development. There would be no increase in the runoff on the Cumberland Vail property over what is there today. The City Engineer approve all drainage and retention facilities and make sure they meet all applicable city. county and state ordinances and codes. The chain link fence proposed for the sides and rear of the property be a minimum of two feet off the property line to allow for maintenance and access to that fencing. In terms of the south side of the property abutting Cumberland Vail, that no pavement or construction of any structure take place any nearer than thirty-five feet to that south property line. That any trees over six inches in diameter, on the south side of the property. between a line thirty-five feet and fifty feet. which is determined as necessary to remove be replaced according to the terms of our tree ordinance with additional tree plantings in this green buffered area between Cumberland Vail and Vinings Forest. Existing trees in the existing thirty-five foot natural buffer to remain in all circumstances except when tree is considered to be unhealthy or damaged in any way that would cause the tree to become weak and therefore pose a threat to the immediate surroundings. Wisteria vines in existing thirty-five foot buffer to be removed to ensure the continued health of the trees. Loblolly pines to be planted in a staggered row of varying sizes to produce a continuous, natural layered screen. .... 2. 3. 4. 5. 6. 7. fL October 17, 1994, meeting - continued 9. The trash receptacle/compactor on the property will be designed to incorporate recycling for that property. 10. The covenants for the property prohibit the outdoor storage of recreational vehicles and boats outside of the enclosed garage. Councilman Cramer seconded the motion to approve the rezoning request at 3215 Atlanta Road. Motion was approved 7-0. ~ (C) Variance Request - 3215 Atlanta Road - Reduce Buffer Requirement Mayor Bacon asked if there was anyone present in opposition to the variance request at 3215 Atlanta Road to reduce the buffer requirement. There was none. Councilman Lnenicka stated that in order to incorporate the distance requested by the Cumberland Vail home owners on the south side of the property, the applicant is here tonight to ask for a variance on the north side of the property to reduce the setback, instead of a seventy-five foot buffer to a ten foot buffer. Mr. Lnenicka stated he understood Mr. Tise has talked to the adjoining property owner and then asked Mr. Tise to explain what is happening here. Mr. Tise eXplained they have talked to the property owner and his reactions have been very favorable and he has a letter from the property owner's agent, Mr. Uzzel, that he will give to the City Clerk for the records. Mr. Tise stated basically they will have a ten- foot buffer as they try to move seventy-five feet in that direction to allow for building separation and according to Mr. Frank Uzzel of Uzzel Properties who represents lopena, Inc., who owns that site, he has reviewed the site plans from Planners & Engineers dated September 12, 1994, and has no objection to the plan including the side yard variance detailed on the plan. Councilman Lnenicka made a motion that the request for a variance at 3215 Atlanta Road to reduce the buffer adjacent to the Frank Uzzel, lopena, Inc., property on the north and northwest side be reduced from seventy-five feet to ten feet. Councilman Cramer seconded the motion. Councilman Newcomb expressed concern over the reduction of the buffer from seventy-five feet to ten feet. He stated he has a concern how this would affect the quality of development or life there ten years .. down the road. He then asked how this concern would be addressed. Councilman Lnenicka responded that the ten foot buffer is not a building setback it is simply the driveway. Mr. Tise responded the buildings will still be fifty-two feet back from the property line and the only thing in there would be a driveway and a buffer. Mr. Lnenicka stated there is a letter from the property owner approving the request and this is investment property. Mr. Newcomb stated he was still concerned with the ten-foot buffer. Mr. Tise responded there will be a screen there of Loblolly pines the same as will be on the other side but will be in a ten foot buffer and not seventy-five foot buffer and stated the buildings will be fifty-two feet away from the property line. Mayor Bacon stated he felt if the property was investment property and the owner had submitted a letter to the council that he has no problem with it, if he has a problem with it in the future that will be addressed at that time. Motion to approve the variance request at 3215 Atlanta Road to reduce the buffer requirement was approved 6-1 with Mr. Newcomb opposed. (D) Revision to Land Use Map ..... Mr. Thomson stated ten amendments to the future land use map were recommended in the apartment study performed by lohn Moeller to the Planning and Zoning Board. Mr. Thomson stated amendment number 9 needs to be discussed with Cobb County as there are some issues that affect both jurisdictions. The Planning and Zoning Board made a motion which was carried 6-0 to approve the other amendments as recommended. Councilman Newcomb introduced Mr. lohn Moeller, who conducted the study and drafted the amendments presented to the Planning and Zoning Board. Councilman Newcomb stated he would read each of the proposed land use amendments. Mayor Bacon stated that during the discussions pertaining to each of the proposed amendments citizens who wished to make comments would be allowed to do so. October 17, 1994, meeting - continued Councilman Newcomb stated the first amendment concerns Land Lots 310 and 311 at Concord and Hurt Roads. Mr. Newcomb stated the area is currently developed at a density of 3 to 6 dwelling units per acre. He further stated the comprehensive plan shows the property as high density residential with the exception of Mill Creek Apartments (located in the county) there is no other high density residential developments in this area of the city and it is therefore the recommendation of Mr. Moeller to the Planning and Zoning Board and to the Mayor and Council that the Comprehensive Land Use Plan designation should be changed to medium density residential from high density residential. Councilman Newcomb asked if anyone present had any comments concerning this proposed amendment. There were none. .... Councilman Wood stated this area is in his ward and he supports this amendment as it reduces the density in this area and feels this is in the best interest of the city and the residents of the city. Councilman Newcomb made a motion to approve the recommendation of the Planning and Zoning Board as stated in Amendment 1 to change the area so described from high density residential to medium density residential in the comprehensive land use plan. Councilman Wood seconded the motion. Motion was approved 7-0. Councilman Newcomb stated the second amendment deals with the John Wieland tract (land lots 389, 390, 391, 392, 393, 404, 403, 402, 401, 462, 463, 464, 473, 474 and 536) located on the north and south sides of the Southern Railroad line and east of Cooper Lake Road. Mr. Newcomb stated the current development plans call for an overall density of one dwelling unit per acre. He further stated the Comprehensive Plan calls for designation of medium density and the recommendation is to change the Comprehensive Plan to reflect the current development and reduce the land use category to low density residential. He further indicated this would be a change from medium density in the Comprehensive Plan which is three to six dwelling units per acre down to low density residential which would be one to three dwelling units per acre. Mr. Newcomb asked if there were any comments. Councilman Wood stated this area is also in his ward which consists of 415 acres on Cooper Lake Road going west toward Mableton and he feels this change in the comprehensive land use map would be in the best interest of the citizens. '-' Councilman Newcomb made a motion to approve the recommendation ofthe Planning and Zoning Board to change the comprehensive land plan designation for this tract of land from medium density to low density residential. Councilman Wood seconded the motion. Motion was approved 7-0. Councilman Newcomb stated the third amendment involves a tract of land on the south side of Windy Hill Road on Ward Street (land lots 447 and 418) and the comprehensive land plan current shows The Highlands, North Slope Apartments and a portion of The Crestwood Apartments as community activity center as opposed to high density residential. Mr. Newcomb stated the original recommendation that was made to the Planning and Zoning Board was to change this in the comprehensive land plan from community activity center to high density residential. Mr. Newcomb stated the Mayor and Council and Mr. Moeller have had conversations, and a memo from Mr. Moeller, regarding this tract of land as well as the two amendments that follow that instead of changing these they should perhaps leave these as community activity center. Mr. Moeller stated this amendment and the two following amendments deal with existing complexes that are in the city and each of them are large complexes. He stated the existing developments are on arterial highways and therefore have the potential for redevelopment as commercial sites. He further stated if the sites are left as they are currently shown on the comprehensive plan and as currently zoned, they could be repaired or rehabilitated as existing apartment complexes and they could also be developed for commercial sites and the fact that they are on arterial highways would also be an added incentive for development for commercial sites. Additionally, the sites are surrounded by community activity centers on the current land use plan map and all three of those sites have adjacent community activity center on one side or all three sides. He stated the long term view is that these sites could be redeveloped commercially then they should be left in a commercial category on the land use plan. Mr. Newcomb then asked Mr. Moeller if his recommendation on Amendment 3 is that the city not concur with the recommendation of the Planning and Zoning Board that the future comprehensive land use plan be changed and that this tract be left as community activity center. .., There were no questions or comments from the audience. There was none. Councilman Newcomb made a motion that the city not concur with the recommendation of the Planning and Zoning Board that the future comprehensive land use plan be changed and that this tract be left as community activity center. October 17, 1994, meeting - continued Councilman Lnenicka stated in terms of this amendment and the next two that he would favor the same approach on all three sites. He further stated that when the previous council originally did the Comprehensive Land Use Plan the intent was that if these properties did redevelop, the city did want them to have the opportunity to develop as commercial property and not be limited by a future land use plan that was not in accordance with what the city wanted to do. He further stated the current zoning does not match the future land use map. Councilman Hawkins stated this is in his ward and he does have one objection. He further stated there .. are apartments in this area now and that means that property would not be in conformity with the future land use map. Mr. Moeller stated that was correct but it would be in conformity with the existing zoning of the property. Mr. Hawkins then asked that if for some reason, someone came in and wanted to purchase the apartments and tear them down and build multi-family condominiums or even apartments, would they have to come back and get a rezoning or is the zoning on the property going to stand until someone comes in for a rezoning. Mr. Moeller replied that is correct; the zoning on the property would stand so you could redevelop the property for RM-12 if the property was zoned RM-12, but in leaving it as shown on the comprehensive land use plan map you are encouraging the developer to come in, in this case, with a higher density type of commercial development and that would require a rezoning. Mayor Bacon asked if someone wanted to come in and do a complete renovation on that property, would they have a problem securing refinancing on that to redevelop it or rehabilitate it because of the future land use plan. Mr. Moeller responded if it was going to be rehabilitated in accordance with the current zoning, there would be no problem in rehabilitating it and he did not foresee any problem with refinancing it. Councilman Newcomb restated his motion that the city not concur with the recommendation of the Planning and Zoning Board that the future comprehensive land use plan be changed and that this tract be left as community activity center. Councilman Hawkins seconded the motion. Motion was approved 7-0. ... Councilman Newcomb stated Amendment 4 pertains to the area on the west side of South Cobb Drive and south of Plaza Drive (land Lot 378). He further stated the Comprehensive Plan shows the Brookview Apartments as community activity center as opposed to high density residential. Mr. Newcomb stated this is the same situation as discussed above with the original recommendation being to change the property to high density residential to reflect its existing use and zoning but upon further reflection, the correct thing to do would be to leave it as community activity center. Councilman Newcomb asked if there was anyone present who would like to comment on this amendment. There was none. Councilman Cramer stated this is in his ward and he agrees with Mr. Newcomb and Mr. Moeller that this should be left as community activity center. Councilman Newcomb made a motion that the city not concur with the recommendation of the Planning and Zoning Board that the future comprehensive land use plan be changed and that this tract be left as community activity center. Councilman Cramer seconded the motion. Motion was approved 7-0. Councilman Newcomb stated Amendment 5 pertains to the property on the east side of Cobb Parkway (U .S.41) north of Whitley Road (Land lots 848, 878, 879 and 916). He further stated this is the largest of a couple of tracts in the City of Smyrna on the east side of Cobb Parkway. The tract is currently zoned RM-12 and developed multi-family (Windsor Lake Apartments, formerly Cedar Lake Apartments). The comprehensive plan currently designates this tract as community activity center and the original motion was to change it to high density residential to reflect its current use. He then stated that upon further reflection, as in the previous two amendments, it would be better to leave it as community activity center. Mr. Newcomb then asked if anyone present had any comments they would like to make concerning this amendment. There was none. .. Councilman Newcomb made a motion that the city not concur with the recommendation of the Planning and Zoning Board to change this tract of land to high density residential and leave it as community activity. Councilman Wood seconded the motion. Motion was approved 7-0. Councilman Newcomb stated Amendment 6 pertains to the area north of Spring Road to include the area north of Cumberland Valley Road (Land lots 665 and 666). This area is currently developed for townhouses and yet is shown on the comprehensive plan as high density which could be six to sixteen units per acre. This area could be redesignated for medium density residential (three to six dwelling units per acre). He further stated this is one of the recommendations from the apartment density study that Mr. October 17. 1994. meeting - continued Moeller conducted. Mr. Moeller commented that he felt there were several people in the audience who are concerned about this and the fact that this change will not affect their current zoning on the property. Secondly, this amendment ties in with Amendment 9 which the Planning and Zoning Board has decided to delete from the agenda tonight because it involves both developments in the county and the city. This would start setting a trend for medium density residential on the south end, the Spring Road side, and he stated he would hope to move toward lower density as you go to the Smyrna Roswell Road area. He further stated the concept here is to try to bring the density down in this area so it would not affect the complex that is currently zoned on this property. - Councilman Newcomb asked Mr. Moeller if there was any reason the council should not take action on this item tonight since it is tied to Amendment 9. Mr. Moeller stated he did not see any problem with taking action on this amendment but he felt the council should listen to the citizens who are present tonight who have concerns. Mayor Bacon asked if there was any comment from the audience. Ms. Sylvia Harris, 1815 Terri Myers Drive, came forward and stated she has been a resident of the city for the past ten years in the Cumberland Townhomes and she wanted to know the purpose of this amendment, why is it being done now and was not done when she bought the property. She further stated she did not want the property to turn into commercial property with her property being left behind. Councilman Newcomb stated this would not cause any of her concerns to come true. This is simply changing in the comprehensive plan from high density to medium density which he understands from her she would look more favorably upon. Ms. Harris replied that was correct. Ms. Harris then asked about the front portion of the Cumberland Townhomes on Spring Road, suppose that should become commercial. Mr. Newcomb stated he was not familiar with the property she was discussing but that is not being affected by this action tonight. Councilman Scoggins stated this area is in his ward and this will not affect her property at all. He then stated this is on the lower side of the property behind Village Parkway. - Councilman Newcomb made a motion that the tract of land described in Amendment 6 as north of Spring Road to include the area north of Cumberland Valley Road (land lots 665 and 666) be changed on the comprehensive land use plan from high density to medium density. Councilman Scoggins seconded the motion. Motion was approved 7-0. Councilman Newcomb stated Amendment 7 needs to be discussed. He addressed Mr. Lnenicka and stated that he had noticed in dealing with this property he noticed the land use plan has not formally been changed. He also stated they had discussed the need not to do this but feels it needs to be discussed. Mr. Lnenicka responded this property was, until very recently, in the county and was just annexed into the city. Mr. Lnenicka then asked Mr. Moeller if he remembered what the county map had on this property and would that be grand-fathered into the city. Mr. Moeller responded that as far as the land use plan was concerned, he believes it was shown as low density. Mr. Lnenicka then stated he felt what should be done on this property is to either postpone it for further study as part of the overall study of the Atlanta Road corridor or make some changes. He then stated he preferred postponing action on this item; continue doing what we recommended as part of the apartment study that Mr. Moeller headed, and study this corridor and look for ways to again protect the neighborhoods in the area with the comprehensive future land use plan. Councilman Newcomb asked Mr. Moeller if he had a comment on Amendment 7. Mr. Moeller stated that on Amendment 7, that based on the action taken on the rezoning on the property, coupled with pending studies on Atlanta Road and South Cobb Drive, it would be best to hold Amendment 7. Councilman Newcomb asked if anyone present had any comments concerning postponing action on Amendment 7. There was none. Councilman Newcomb then made a motion that the city postpone taking action on the recommendation from the Planning and Zoning Board on Amendment 7. Councilman Lnenicka seconded the motion. Motion was approved 7-0. - Councilman Lnenicka then asked Mr. Newcomb if Mr. Moeller would be coming back before the council later this year with a further recommendation. Mr. Newcomb responded that was correct. Councilman Newcomb stated Amendment 8 is a redevelopment area east of South Cobb Drive and Camp October 17. 1994. meeting - continued Highlands Road (Land lot 548). He then stated the land use designation is medium high density residential and redevelopment and the current land use zoning is a mixture of single family, town houses and some light industrial property. He then stated the recommendation of Mr. Moeller to the Planning and Zoning Board and from the Planning and Zoning Board to the Mayor and Council is that the comprehensive future land use designation be changed to medium density. - Mr. Newcomb asked Mr. Moeller to elaborate on this amendment. Mr. Moeller stated there is some existing development that is shown on the map for Amendment 8 and much of that development is currently in a medium density category and therefore they are recommending that it come out of redevelopment and go into a medium density pretty much as it is developed. Mayor Bacon asked if there was any discussion on this amendment. A woman, resident of Laurel Bridge Court, came forward to express her concerns and asked what is going to happen to the light industry in that area and she indicated she understood the property had previously been zoned for redevelopment and medium density. Councilman Wood stated the city is talking about reducing the density which would protect her property as it is. Mr. Moeller stated there is a larger area shown as redevelopment and the city is only talking about a very small portion of that redevelopment area and basically it is on the south side of Cooper Lake Road. Councilman Wood stated that a portion of the property on South Cobb Drive is in the county and is zoned commercial and unfortunately the city has no control of that property, but the property in the city of Smyrna will be affected by the proposed amendment and will protect her property and the residential development in which she lives. Councilman Lnenicka stated he would not vote for anything that would hurt a residential neighborhood. .. Councilman Newcomb made a motion that the city approve the recommendation of the Planning and Zoning Board that the tract of land described in Amendment 8 (a redevelopment area east of South Cobb Drive and Camp Highlands Road - Land Lot 548) be changed to medium density. Councilman Wood seconded the motion. Motion was approved 7-0. Councilman Newcomb stated Amendment 9 (Windy Hill Road and Smyrna-Roswell Road south to Spring Road - Land Lots 632, 633, 634, 662, 663 and 664) was submitted to the Planning and Zoning Board and the Planning and Zoning Board is doing further study on this issue with Mr. Moeller and city staff, working with the county, and no recommendation has heen forwarded to this group at this time. Councilman Newcomh made a motion that action on Amendment 9 be postponed as submitted to the Planning and Zoning Board pending further recommendations. Councilman Scoggins seconded the motion. Motion was approved 7-0. Councilman Newcomb stated Amendment 10 (South Cohh Drive south of Starline Drive - Land Lot 482) is another mixed situation where the frontage of the property is shown as community activity center while the rear of the property is shown as low density residential. He further stated that recently the property was rezoned to General Commercial by the Council for a shopping center and the original recommendation by the Planning and Zoning Board was that the rear of the property should also be shown as community activity center. He then stated that upon further discussion of this item, the GC designation to this property had a time limit placed on it and if it was developed as such, the zoning would revert to its original zoning. He stated therefore it would be more appropriate to postpone action on this item due to the time limited zoning on the property. He then asked if there was anyone present who would like to comment on this amendment. ... Councilman Hawkins stated he supported delaying action on this amendment because the back of that property is now being shown as low density residential and there are residents living there. Mr. Hawkins further stated the current zoning on the property is conditional and the original plan that was shown at the rezoning could very well be in jeopardy and may not proceed, and he is supportive of tabling this issue at this time. Mr. Moeller stated he agreed and was not aware of the reversionary clause and feels postponement is the proper action to take. October 17, 1994, meeting. - continued Councilman Newcomb asked if there were any comments from the audience. There were none. Councilman Newcomb made a motion that the city not concur with the recommendation of the Planning and Zoning Board on Amendment 10 (South Cobb Drive south of Starline Drive - Land Lot 482). Councilman Wood seconded the motion. Motion was approved 7-0. (E) Annexation of Property - 3793 North Cooper Lake Road Councilman Wood stated this application was filed by Ronald W. Trumble and Elise A. Trumble at 3793 North Cooper Lake Road and they have subsequently withdrawn their annexation request. Councilman Wood made a motion that the annexation request of the property at 3793 North Cooper Lake Road be deleted from the agenda without prejudice. Councilman Hawkins seconded the motion. Motion was approved 7-0. -- (F) Alcoholic Beverage License Request - Retail Pouring of Beer, Wine and Liquor - Skip's Bar-B-Q/Lexington Style - 2365 South Cobb Drive Mr. Thomson stated Ms. Julie D. Pass will be the agent for this establishment. He further stated she is also a manager of the business and the business is located at 2365 South Cobb Drive which was formerly the address of Dee Dee's Cafe. Mr. Thomson further stated Ms. Pass has been given a copy of the alcoholic beverage ordinance and has indicated she will comply with the ordinance. Mayor Bacon stated this is a public hearing and asked if there was anyone present in opposition to the granting of this business license request. There was none. Councilman Cramer asked Ms. Pass if she would briefly explain what type training program they will conduct at Skip's Bar-B-Q. Ms. Pass explained she had written down specific instructions that would directly affect the waitress/wait staff and will hold a meeting to review those. Councilman Cramer asked Ms. Pass if she was aware the city frequently conducted sting operations and she indicated their policy would be to card everyone. Mr. Cramer stated the Police Department investigation indicated nothing that would preclude the issuance of this license. - Councilman Cramer made a motion the alcoholic beverage license request for the retail pouring of beer, wine and liquor for Skip's Bar-B-Q/Lexington Style at 2365 South Cobb Drive be approved. Motion was seconded by Councilman Scoggins. Motion was approved 7-0. FORMAL BUSINESS: (A) Bid Opening (Bid 94018) - Service Truck for Public Works Department Mayor Bacon announced three bids were received for a service truck for the Public Works Department. The bids were opened and read as follows: Carl Black Buick & GMC Truck *With a Rugby Hoist * *With a Godwin Hoist $25,095.35* $25,026.35 * * Boomershine GMC Truck $27,781. 00 Smyrna Truck Body $26,783.00 Councilman Wood made a motion the bids be turned over to the Public Works Department for their review and a recommendation to be brought back at the next council meeting. Councilman Patrick seconded the motion. Motion was approved 7-0. -- (B) Bid Opening - Concord Road Turn Lane at North Cooper Lake Road Mayor Bacon stated four bids were received and asked if there were any bids in the audience. There were none. The bids were opened and read as follows: Peach State Grading, Inc. Baldwin Paving Company $247,031.00 $286,474.29 October 17, 1994, meeting - continued Paul F. Tucker, Enterprises, Inc. D & H Construction Company $215,910.40 $477,777.00 Councilman Scoggins made a motion the bids be turned over to the Public Works Department for their review and a recommendation to be brought back at the next council meeting. Councilman Wood seconded the motion. Motion was approved 7-0. COMMERCIAL BUILDING PERMITS: ... (A) Temporary Building Permit (6 Months) - 2400 Atlanta Road - Georgia Emission Testing Station Councilman Hawkins made a motion the temporary building permit (6 months) for Georgia Emission Testing at 2400 Atlanta Road be approved. Councilman Cramer seconded the motion. Motion was approved 7-0. (B) Temporary Building Permit (6 Months) - 2552 South Cobb Drive - Georgia Emission Testing Station Councilman Cramer made a motion the temporary building permit (6 months) for Georgia Emission Testing at 2552 South Cobb Drive be approved. Councilman Hawkins seconded the motion. Motion was approved 7-0. BID AWARDS: (A) Concrete Contract - City of Smyrna Councilman Scoggins made a motion this item be tabled due to legal questions concerning the dollar amount involved and the fact this is for a two year contract. Motion was seconded by Councilman Lnenicka. Motion was approved 7-0. ... (B) Water and Sewer Line Installation Contract Councilman Scoggins stated this item has been reviewed by the Public Works Committee and there is quite a discrepancy between the high and the low bid and a legal question came up. He then made a motion this item be tabled and referred back to the legal department for a ruling. The motion was seconded by Councilman Wood. Motion was approved 7-0. CONSENT AGENDA: (A) Approval of October 3, 1994, Minutes (B) Approval to Install 4- Way Stop Signs - Intersection of Pinehurst Drive and Pinehurst Circle at King Springs Road (C) Transfer of CDBG Funds From 1994 Housing/Rehabilitation to 1995 Church Street Senior Citizen Center/Pool Improvements (D) Approval to Request Bids for Vending Services Councilman Hawkins made a motion the 'consent agenda be approved. Motion was seconded by Councilman Cramer. Motion was approved 7-0. COMMITTEE REPORTS: .. Mayor Bacon announced that on October 18 at 7:00 p.m. there will be a town hall meeting at the Community Center and the purpose of the meeting is to discuss Phase II development of the downtown area and also to discuss issues that concern the city's public safety building and the referendum that will be on the ballot for the November 8, 1994, election. He then encouraged all citizens to attend and stated it will be televised on Channel 9. He further stated this will be an informational meeting that hopefully will answer a lot of questions the citizens may have about what is going on in the downtown area. Mayor Bacon then stated he and Chief Hook travelled to the White House last week to receive a grant of $446,000 from the Federal Government as part of the President's Anti-Crime Bill. Mayor Bacon stated this will allow the city to put eight additional police officers on the streets of Smyrna and he stated this is for a period of three years with the option at the end of three years to continue the program or October 17, 1994, meeting. - continued discontinue the program. Councilman Wood asked Jim Triplett for a report from the Finance Department. Mr. Triplett stated the Capital Improvements project is continuing and the CIP Committee will be recommending year one of the plan by October 28 with years two through six recommendations due at a later date and completed by December. Councilman Lnenicka read a letter from Kevin Kelly, President of the Vinings Glen Homeowners Association, Phase I and II, commending the police department for the September 22 Neighborhood Watch meeting. -- Councilman Cramer asked for a report from Steve Ciaccio, Director of Parks and Recreation. Mr. Ciaccio reminded everyone the Jonquil Arts and Crafts Festival will be October 22 and 23, 1994, on the Village Green. He then stated the Halloween Carnival will be October 31 in the Community Center. Councilman Hawkins asked Chief Larry Williams for a report on the Fire Department. Chief Williams stated on November 14 and continuing through the month, his department will begin flow testing the hydrants in the city. Mayor Bacon asked Chief Williams about the permitting process for burning leaves in the City of Smyrna. Chief Williams stated those permits are obtained over the telephone. Mayor Bacon then asked what happens when someone is sitting out in their yard, trying to enjoy the evening, and their neighbor begins burning leaves and the afternoon becomes a smoke-filled afternoon and asked can they do about this problem. Chief Williams responded the fires must be out by 6:00 p.m. and that is the cut off time. Chief Williams stated the discontinuation of burning leaves has been discussed and he will abide by the directions of the Mayor and Council on this issue. Councilman Hawkins thanked the council for their support of the installation of stop signs on Pinehurst Circle at King Springs Road. Mr. Hawkins then instructed City Engineer Ken Hildebrandt to install "rumble bars" on McCauley Drive at Oakdale Road before the stop signs. - Councilman Scoggins asked Kathie Barton for a report on Community Relations. Ms. Barton urged everyone to attend the town hall meeting scheduled for October li'l. Ms. Barton stated she and Lt. Mike Brown have been working for several months on a "Walk Safe Program" and information has been distributed to the apartment complexes. Ms. Barton stated "Safe Kids Fest" is the culmination of Red Ribbon Week, which is a part of the Partners In Education program will be taking place the week of October 24 and on Saturday, October 29, there will be a "Safe Kids Fest" at the Community Center from 10:00 a.m. to 2:00 p.m. Councilman Scoggins asked Ann Kirk for a report on the Smyrna Clean and Beautiful Department. Ms. Kirk urged all citizens who wished to burn leaves to visit the Smyrna Recycling Education Center to learn about composting leaves. Ms. Kirk stated that as a result of the Fall Into Recycling event on October, over 50 tons of material was diverted from the landfills. Ms. Kirk expressed her appreciation to the people who assisted in the Fall Into Recycling event. Ms. Kirk stated the Adopt A Mile program took place on October 15 and fifty-two bags of litter were picked up by forty-three volunteers. Ms. Kirk then commended the Public Works Department for their planting job at the Arthur T. Bacon bridge on Windy Hill Road. Councilman Scoggins asked Nancy Hancock for a report on the Cemetery Commission. Ms. Hancock reported the Cemetery Commission had received a very large donation of plants which should meet at least half of their landscaping desires but stated they still have a need for jonquils which they hope to plant in the Smyrna Memorial Cemetery. Ms. Hancock stated the Pathway of Honor has raised $1200 to date and the projected need is $20,000. ~ Councilman Scoggins asked Ray Curtis for a report on the Public Works Department. Mr. Curtis reported C. W. Matthews has completed paving seven streets in the city and is currently working on Plumcrest and indicated several curbing projects are underway but the creek work has been slowed tremendously due to the weather. Councilman Lnenicka expressed his appreciation on behalf of the Cedar Cliffs Homeowners Association for the chips that were recently delivered. Councilman Cramer urged the citizens to vote for the extension of the 1 % road tax which will be of great benefit to the city in order to help complete road projects in the city. October 17, 1994, meeting - continued Councilman Scoggins then encouraged all citizens to attend the town hall meeting scheduled for October 18. Councilman Newcomb asked Chris Corey for a report on the Human Resources Department. Mr. Corey reported the Human Resources Department would like to congratulate the Police Department on the grant they just received and stated his department would do everything they could to get those additional _ officers on the streets. He stated all candidates who sat for the recent police examination have been notified of their scores by mail. He further stated that of 129 police officer candidates, 88 individuals .... passed both sections of the examination and of the total passing scores 44 candidates will be invited for panel interviews which will be conducted by members of the Police Department. He also stated the panel will be meeting with the Human Resources Department this week in preparation for those interviews. Mr. Corey reported that of the 76 firefighter candidates, 64 individuals passed both sections of the examination and 36 of those individuals will be invited for interviews conducted by the Fire Department. He stated members of the Fire Department will be meeting with the Human Resources Department next week to prepare for those interviews which will be conducted either the last week of October or the first week in November. Mr. Corey announced two job openings; light equipment operator in Public Works Department and Laborer II in the Public Works Department. Councilman Patrick asked Laurel Best for a report on the Library. Ms. Best reported the Library is having a Stephen King Trivia Contest and urged everyone to participate and forms are available in the library with a grand prize drawing on Halloween Day. Mayor Bacon again urged everyone to attend the town hall meeting on October 18, 1994, at 7:00 p.m. at the Community Center. With no further business, the meeting adjourned at 10:19 p.m. ~~ &Jhj(tJ AD~ VUr-- MELINDA DAMERON, CITY CLERK ... A. MAX BACON , MAYOR tL.'" ~) ^Jp, Jc~~~ L Jgw4#;t'z;-<:~ J N PATRICK, WARD 1 .--- RON NEWCOMB, WARD 2 -& BILL SCO GINS, W ~d~- JACK CRAMER, WARD 5 Y~$" AMES M. HAWKINS, WARD 4 ~1&~~ WADE S. L E C , WARD 6 t?~~a/~ CHARLES PETE WOOD, WARD 7 .... "/1 ... THIRD AMENDED AND RESTATED LEASE CONTRACT between DOWNTOWN SMYRNA DEVELOPMENT AUTHORITY and CITY OF SMYRNA .. Dated as of Sepcember ~, ~989 ...., . '" -.... ... ..., 132392.1 TABLE OF CONTENTS ARTICLE I DEFINITIONS "Additional Bonds" "Authority" "Authority Act" "Basic Lease Payment" "Bondowner" and "bondowner" "Bonds" "City" or "Lessee" . "Fiscal Year" "Lease" or "Contract" "Lease Term" . "Leased Facilities" "1990 Resolution" "1993 Resolution" "1994 Resolution" "Original Resolution" "Outstanding Series 1989 Bonds" "Outstanding Series 1990 Bonds" "Permitted Encumbrances" Permitted Investments" Phase I Capital Improvement Program" Phase II Capital Improvement Program" Prior Bonds" Prior Resolutions" Project Fund" Project Fund Depository" Resolution" 'Revenue Bond Law" "Series 1989 Bonds" "Series 1990 Bonds" "Series 1993 Bonds" "Series 1994 Bonds" "Sinking Fund" . "Sinking Fund Custodian" "Sinking Fund Year" ARTICLE II Section 2.1. Section 2.2. Lessee REPRESENTATIONS Representations by the Authority Representations and Agreements by the i 7 7 7 7 7 7 7 7 8 8 8 8 8 8 8 8 8 8 8 10 10 10 10 10 10 10 10 10 10 11 11 11 11 11 11 12 . -- .. .... 132392.1 ARTICLE III LEASING; ISSUANCE OF BONDS; PROCEEDS; COMMENCEMENT AND COMPLETION OF THE PROJECTS Section 3.1. Leasinq. . .. '" Section 3.2. Agreement to Issue the Bonds; Aoolica- tion of Bond Proceeds . ..... Section 3.3. proiect Fund Moneys. . . . . . . . Section 3.4. Phase I Projects Completed ... Section 3.5. Agreement to Construct the proiects Section 3.6. In Event proiect Fund Insufficient Section 3.7. Investment of Proiect Fund Moneys Permitted ... . . . . . . . 13 13 14 14 14 17 17 ARTICLE IV EFFECTIVE DATE OF THIS LEASE; DURATION OF LEASE TERM; RENTAL PROVISIONS; FLOW OF FUNDS Section 4.1. Effective Date of this Lease; Duration of Lease Term . . . . . . . . . . . . 17 Section 4.2. Delivery and Acceptance of Possession 17 Section 4.3. Basic Lease Payments . . . 18 Section 4.4. O~eratinq E~enses . . . 18 Section 4.5. Optional Prepayment of Rent; Redemption of Bonds . . . . . . .. ..... 19 Section 4.6. Obligations of Lessee Hereunder Absolute and Unconditional . . " .... 19 Section 4.7. Tax Levy to Pay Basic Lease Payments 20 ARTICLE V Section 5.1. Section 5.2. Section 5.3. Section 5.4. Section 5.5. Section 5.6. SPECIAL COVENANTS OF CITY Rules and Regulations Contractinq Procedure Liens . Insurance . . Sale of Assets Arbitraqe . . . 21 21 21 22 22 23 ARTICLE VI SPECIAL COVENANTS OF AUTHORITY AND CITY Section 6.1. No Warranty of Condition or Suitability by the Authority . . . . . . . . . . 23 Section 6.2. Inspection of the Leased Facilities 23 Section 6.3. Grantinq of Easements; Sale. . . 23 Section 6.4. Further Assurances and Corrective Instruments. Recordings and Filings 24 Section 6.5. Release Covenants. . . . . . . . 24 ii '- .'-- .. .... 132392.1 Section 7.1. Section 7.2. Section 7.3. Section 7.4. Expenses Section 7.5. Waiver Section 8.1. Section 8.2. Section 8.3. Purchase Section 9.1. Section 9.2. Section 9.3. Section 9.4. Section 9.5. Section 9.6. Section 9.7. Section 9.8. Section 9.9. Section 9.10. Section 9.11. ARTICLE VII EVENTS OF DEFAULT AND REMEDIES Events of Default Defined Remedies on Default . . . . No Remedv Exclusive . . . . Agreement to Pay Attorneys' Fees and No Additional Waiver Implied bv One ARTICLE VIII OPTION OF LESSEE Unqualified 09tion to Purchase Purchase Price . . . Procedure For Exercisinq OPtion to ARTICLE IX MISCELLANEOUS Notices . . Bindinq Effect Severability Amounts Remaining in Sinkinq Fund Amendments. Chanqes and Modifications Execution Counterparts CaPtions . . . . . . Law Governing Construction of Lease RedemPtion of Bonds Net Lease Operatinq Contracts iii 24 25 26 26 26 27 27 27 27 27 27 28 28 28 28 28 28 28 28 ;. THIRD AMENDED AND RESTATED LEASE CONTRACT "- THIS THIRD AMENDED AND RESTATED LEASE CONTRACT is entered into as of September 1, 1989, by and between the DOWNTOWN SHYRNA DEVELOPMENT AUTHORITY (the "Authority"), a body corporate and politic and deemed to be a political subdivision and public corporation of the State of Georgia created and existing under the Constitution of the State of Georgia, as Lessor, and the CITY OF SMYRNA (the "Lessee" or the "City"), a political subdivision of the State of Georgia, as Lessee. WIT N E SSE T H: In consideration of the respective representations and covenants hereinafter contained, the Authority and the Lessee agree as follows: WHEREAS, pursuant to an amendment to Article VII, Section VII, Paragraph I of the Constitution of the State of Georgia of 1945 (Georgia Laws 1970, p. 1117 et seq.) and now specifically continued pursuant to an Act of the General Assembly (Georgia Laws 1986, p. 3957 et seq.) as a part of the Constitution of the State of Georgia of 1983, and under the provisions of Georgia Laws 1989, p. 4382 et seq., known as the "Downtown Smyrna Development Authority Act" (the "Authority Act") there was created a body corporate and politic, designated as the "Downtown Smyrna Development Authority" (hereinafter sometimes referred to as the "Authority") and the __ Authority is deemed to be a political subdivision of the State of Georgia and a public corporation, which Authority has been duly activated and organized and its members are now performing their duties and are serving in the furtherance of the purpose for which the Authority was created; and WHEREAS, the City is a public body corporate and politic and a municipal corporation duly organized and validly existing under the laws of the State of Georgia; and WHEREAS, the Authority is authorized to undertake the acquisition, construction, remodeling, altering, renovating, equipping, maintaining, and operating of buildings, both private and public, and the usual and convenient facilities appertaining to such undertakings and extension and improvement of such buildings; the acquisition of parking facilities or parking areas in connection therewith; the construction, reconstruction, alteration, changing and closing of streets, roads, and alleys; the acquisition of the necessary property therefor, both real and personal; and the lease and sale of any part or all of such buildings, including real and personal property, so as to assure the efficient and proper development, maintenance and operation of such buildings, streets, .. 132392.1 ;;. roads and alleys deemed by the Authority to be necessary, convenient or desirable in connection therewith; and "- WHEREAS, the City and the Authority, after an investigation and study of the current capital needs and the desirability for the redevelopment of the downtown Smyrna area, have heretofore determined that there was an urgent need for certain capital improvements to be made; and WHEREAS, the City and the Authority determined that such improvements and other undertakings should be accomplished in accordance with, or substantially in accordance with, the report entitled "Smyrna Master Plan; Phase I: Community Center and Library, proj ect No. 88190," dated September, 1989, prepared by Sizemore Floyd Architects, Atlanta, Georgia, said report being hereinafter referred to as the "Phase I Capital Improvement Program"; and WHEREAS, the Authority heretofore determined that the best method of raising the moneys required to finance such undertaking was by the issuance and sale of its revenue bonds for such purpose; and WHEREAS, to finance a portion of the cost of the undertaking, the Authority heretofore authorized, pursuant to that certain bond resolution adopted September 5, 1989, as supplemented by a resolution adopted November 8, 1989 (the "Original Resolutionll) the issuance of, and actually issued and delivered, $6,430,000 aggregate principal amount of its Revenue Bonds, Series 1989, dated November 1, 1989 (the "Series 1989 Bondsll) in the form of fully .... registered bonds without coupons, transferable to subsequent owners as therein provided, bearing interest from date at the rate per annum set forth below opposite each principal maturity, all interest payable August 1, 1990 and semiannually thereafter on the 1st days of February and August in each year, and the principal maturing on the 1st day of February, in the years and amounts, as follows: .. 132392.1 2 ~ Year Amount Rate Year Amount Rate 1993 $ 50,000 6.25% 2003 $ 215,000 6.75 % 1994 120,000 6.30 2004 230,000 6.80 1995 125,000 6.35 2005 245,000 6.85 1996 135,000 6.40 2006 265,000 6.90 ."'" 1997 145,000 6.45 2007 285,000 7.00 1998 150,000 6.50 2008 305,000 7.00 1999 165,000 6.55 2009 330,000 7.00 2000 175,000 6.60 2010 355,000 7.00 2001 185,000 6.65 2016 2,750,000 7.125 2002 200,000 6.70 of which Series 1989 Bonds there is now outstanding $2,235,000 taking into account the refunding of the Refunded Series 1989 Bonds hereinafter described (the "Outstanding Series 1989 Bonds") and said Outstanding Series 1989 Bonds have as security for the payment thereof and interest thereon certain revenues of the Authority to be received pursuant to the Original Lease (hereinafter defined) ; and WHEREAS, all of the facilities acquired, constructed and equipped pursuant to the Phase I Capital Improvement Program (the "Leased Facilities") were leased to the City pursuant to a Lease Contract, dated as of September 1, 1989, between the Authority and the City (the "Original Lease") and the City agreed to operate and maintain the Leased Facilities financed with the proceeds of the Series 1989 Bonds and any additional bonds ranking on a parity with the Series 1989 Bonds; and ... WHEREAS, the Original Lease obligated the City to make Basic Lease Payments (hereinafter defined) in an amount sufficient to enable the Authority to pay principal of and interest on the Series 1989 Bonds as same become due and payable and the City agreed in the Original Lease to exercise its power of taxation to the extent necessary to make such Basic Lease Payments; and WHEREAS, to finance the remaining portion of the improvements and undertakings set forth in the Phase I Capital Improvement Program, the Authority authorized pursuant to that certain bond resolution adopted February 5, 1990, as supplemented and amended by resolutions adopted March 22, 1990 and April 2, 1990 (the "1990 Resolution") the issuance of, and actually issued and delivered, $8,690,000 aggregate principal amount of its Revenue Bonds, Series 1990, dated February 1, 1990 (the "Series 1990 Bonds") in the form of fully registered bonds without coupons, transferable to subsequent owners as therein provided, bearing interest from date at the rate per annum set forth below opposite each principal maturity, all interest payable August 1, 1990 and semiannually thereafter on the 1st day of February and August in each year, and the principal maturing on the 1st day of February, in the years and amounts as follows: .. 132392.1 3 Year Amount Rate Year Amount Rate 1992 $ 30,000 6.10% 2001 $ 255,000 7.10 % 1993 95,000 6.25 2002 275,000 7.10 1994 165,000 6.35 2003 290,000 7.10 '- 1995 175,000 6.45 2004 315,000 7.10 1996 185,000 6.55 2005 335,000 7.15 1997 195,000 6.65 2006 360,000 7.20 1998 210,000 6.75 2007 385,000 7.20 1999 225,000 6.85 2010 1,320,000 7.25 2000 240,000 6.95 2016 3,635,000 7.375 of which Series 1990 Bonds there is now outstanding $2,050,000 taking into account the refunding of the Refunded Series 1990 Bonds hereinafter described (the ~outstanding Series 1990 Bonds~) and said Outstanding Series 1990 Bonds, together with the Outstanding Series 1989 Bonds, have as security for the payment thereof and interest thereon certain revenues of the Authority to be received pursuant to the 1990 Lease (hereinafter defined); and WHEREAS, as provided in the Original Resolution, the original Lease was amended to reflect the issuance of the Series 1990 Bonds and the change in the Basic Lease Payments necessitated thereby, all as provided in that certain Amended and Restated Lease Contract, dated as of September 1, 1989, between the Authority and the City (the ~1990 Lease~); and WHEREAS, the Authority received a reconunendation from Lex ..... Jolley & Co., Inc., Atlanta, Georgia, now known as Bank South Securi ties Corporation, Atlanta, Georgia (~Bank South Securi ties II) , that, due to present market conditions, it was advisable, feasible and in the best interest of the Authority that the outstanding Series 1989 Bonds maturing in the years 2007 through 2016, inclusive, in the aggregate principal amount of $4,025,000 (the ~Refunded Series 1989 Bonds~) and the outstanding Series 1990 Bonds maturing in the years 2004 through 2016, inclusive, in the aggregate principal amount of $6,350,000 (the ~Refunded Series 1990 Bonds~ and, together with the Refunded Series 1989 Bonds, the ~Refunded Bonds~) be refunded at that time in order to effect a savings in the debt service requirements; and the Authority determined, after its own independent study and investigation, that it was in its best interest to refund the Refunded Bonds as aforesaid; and WHEREAS, to finance the refunding of the Refunded Bonds the Authority authorized pursuant to that certain bond resolution adoPted March 11,1993 (the ~1993 Resolution~) the issuance of, and actually issued and delivered, $11,985,000 aggregate principal amount of its Revenue Refunding Bonds, Series 1993, dated March 1, 1993 (the ~ Series 1993 Bonds ~) in the form of fully registered 132392.1 4 .. ...... bonds without coupons, transferable to subsequent owners as therein provided, in the denomination of $5,000 or any integral multiple thereof, numbered from R-1 upwards, bearing interest from date at the rate per annum set forth opposite each principal maturity, all interest payable August 1, 1993 and semiannually thereafter on the 1st days of February and August in each year, and the principal maturing on the 1st day of February, in the years and amounts, as follows: Year Amount Rate Year Amount Rate 1994 $ 75,000 2.70% 2003 $ 105,000 4.80% 1995 75,000 3.25 2004 420,000 4.90 1996 80,000 3.70 2005 435,000 5.00 1997 80,000 3.90 2006 460,000 5.00 1998 85,000 4.05 2007 765,000 5.10 1999 85,000 4.30 2008 800,000 5.25 2000 90,000 4.45 2012 3,680,000 5.50 2001 95,000 4.60 2016 4,555,000 5.50 2002 100,000 4.70 of which Series 1993 Bonds there is now outstanding $11,910,000 and said Series 1993 Bonds, together with the Outstanding Series 1989 Bonds and the Outstanding Series 1990 Bonds (the "Prior Bonds"), have as security for the paYment thereof and interest thereon certain revenues of the Authority to be received pursuant to the 1993 Lease (hereinafter defined); and WHEREAS, as provided in the Original Resolution, as ratified, reaffirmed, broadened and extended by the 1990 Resolution and the ... 1993 Resolution, the 1990 Lease was amended to reflect the issuance of the Series 1993 Bonds and the change in the Basic Lease PaYments necessitated thereby, all as provided in that certain Second Amended and Restated Lease Contract, dated as of September 1, 1989, between the Authority and the City (the "1993 Lease"); and WHEREAS, the City and the Authority, after an investigation and study of the current capital needs and the desirability for the continuing redevelopment of the downtown Smyrna area, have determined that there is an urgent need for certain capital improvements to be made consisting of a new expanded and improved police station and new expanded jail facility and other structures, equipment or facilities useful or desirable in connection therewith to be made; and WHEREAS, the City and the Authority have determined that such undertaking can be accomplished, in accordance with, or substantially in accordance with, the report dated November, 1994, prepared by Sizemore Floyd Architects, Atlanta, Georgia, said report being hereinafter sometimes referred to as "Phase II Capital Improvement Program"; and 132392.1 5 .... WHEREAS, the Authority has determined that the best method of raising the moneys required to finance the undertaking now contemplated is by the issuance and sale of its revenue bonds for such purpose; and WHEREAS, to finance the undertaking now contemplated the '-' Authority proposes to issue not to exceed $7,650,000 aggregate principal amount of its Revenue Bonds, Series 1994 (the "Series 1994 Bonds") more fully described in the 1994 Resolution (hereinafter defined); and WHEREAS, in order to provide for the issuance of the Series 1994 Bonds, it is necessary for the Authority and the City to enter into this Lease Contract to reflect the issuance of the Series 1994 Bonds and the increase in the Basic Lease Payments necessitated thereby; and WHEREAS, Article IX, Section III, Paragraph I of the Constitution of the State of Georgia of 1983 authorizes intergovernmental contracts between any " county, municipality, school district or political subdivision of the state with each other or any other public agency, public corporation, or public authority for j oint services, for the provision of services, or for joint or separate use of facilities or equipment; but such contracts must deal with activities, services and facilities which the contracting parties are authorized by law to undertake or provide. ."; and WHEREAS, pursuant to the provisions of Article IX, Section II, Paragraph III of the Constitution of the State of Georgia of 1983, ... municipalities are empowered to provide police protection and, therefore, the City is authorized to provide such protection and to levy taxes to provide such protection; and WHEREAS, pursuant to Section 6(14) of the Authority Act, the Authority is authorized to execute contracts and other instruments necessary or convenient to exercise its powers, including, but not limited to, contracts for construction of proj ects, leases of proj ects, contracts for sale of proj ects, and contracts with respect to use of projects; and WHEREAS, pursuant to Section 6(21) of the Authority Act, the Authority is authorized to contract for any period not exceeding 50 years with the State of Georgia, state institutions or any municipality, county or political subdivision of the State; and NOW, THEREFORE, in consideration of undertakings as hereinafter set forth, it Authority and the City, each acting by and authorized officers, pursuant to resolutions properly passed, and in consideration of the premises and is agreed by the through its duly duly adopted and the respective 132392.1 6 -- considerations and contracts hereinafter contained, the Authority and the City agree as follows: ARTICLE I '-' DEFINITIONS In addition to the words and terms elsewhere defined in this Lease Contract, the following words and terms as used in this Lease Contract shall have the following meanings unless the context or use indicates another or different meaning or intent and such definitions shall be equally applicable to both the singular and plural forms of the words and terms herein defined: "Additional Bonds" shall mean any revenue bonds of the Authority ranking on a parity with the Prior Bonds and the Series 1994 Bonds which may hereafter be issued pursuant to the Resolution. "Authority" shall mean the Downtown Smyrna Development Authority, its successors and assigns. "Authority Act" shall mean Georgia Laws 1989, p. 4382 et seq. "Basic Lease Payment" means the aggregate amount equal to the principal of and interest on the Bonds coming due on the next succeeding February 1 and the interest on the Bonds coming due on the next succeeding August 1 in each year; provided, however, the Lessee shall receive a credit against any Basic Lease PaYment to ... the extent moneys are on deposit in the Sinking Fund and not previously credited to a Basic Lease PaYment. In addition to the foregoing, each Basic Lease PaYment shall include the charges as billed specified in subparagraphs (e), (f) and (g), of Section 3, Article V of the Original Resolution, as ratified, reaffirmed, broadened and extended in Section 10 of the 1990 Resolution, Section 14 of the 1993 Resolution and Section 14 of the 1994 Resolution, and any deficit in any preceding Basic Lease PaYment. "Bondowner" and "bondowner" means the registered owner of any of the outstanding Bonds. "Bonds" shall mean any revenue bonds authorized by and pursuant to the Resolution, including the Prior Bonds, the 1994 Bonds and any Additional Bonds of the Authority pursuant to the Resolution. issued Series issued "City" or "Lessee" means the City of Smyrna, its successors and assigns. "Fiscal Year" means the fiscal year for the City as may be designated by appropriate proceedings of the City. 132392.1 7 -- "Lease" or "Contract" means the Third Amended and Restated Lease Contract, dated as of September 1, 1989, by and between the Authority and the City, as same from time to time may be amended or restated. "Lease Term" shall have the meaning specified in Section 4.1 ,.. hereof. "Leased Facilities" means the facilities and real property financed with the proceeds of the Series 1989 Bonds, the Series 1990 Bonds, the Series 1994 Bonds and any Additional Bonds issued by the Authority, without regard to whether or not the entire cost of said facilities or property was financed with the proceeds of such Bonds. The real property comprising the Leased Facilities is described in Exhibit A attached hereto and hereby incorporated herein by reference. "1990 Resolution" means that certain bond resolution of the Authority adopted on February 5, 1990, as supplemented and amended March 22, 1990 and April 2, 1990, authorizing the issuance of the Series 1990 Bonds. "1993 Resolution" means that certain bond resolution of the Authority adopted March 11, 1993 authorizing the issuance of the Series 1993 Bonds. .. "1994 Authority resolution the Series Bonds. Resolution" means that certain bond resolution of the adopted November 22, 1994, as supplemented by a of the Authority to be adopted prior to the issuance of 1994 Bonds authorizing the issuance of the Series 1994 "Original Resolution" means that certain bond resolution of the Authority adopted September 5, 1989, as supplemented November 8, 1989, authorizing the issuance of the Series 1989 Bonds. "Outstanding Series 1989 Bonds" means the Series 1989 Bonds maturing in the years 1995 through 2006, inclusive, in the aggregate principal amount of $2,235,000. "Outstanding Series 1990 Bonds" means the Series 1990 Bonds maturing in the years 1995 through 2003, inclusive, in the aggregate principal amount of $2,050,000. "Permitted Encumbrances" means liens and encumbrances existing on the date of acquisition by the Authority of any Leased Facilities, excluding, however, any liens and encumbrances securing any indebtedness for borrowed money. "Permitted Investments" shall mean and include any of the following securities, if and to the extent the same are at the time legal for investment of Authority funds: ... 132392.1 8 ,.., .. .,., 132392.1 (i) any bonds or other obligations of the City of Smyrna, Cobb County or bonds or obligations of the State of Georgia or of other counties, municipal corporations and political subdivisions of the State of Georgia which are rated "A" or better by Moody's Investors Service or Standard & Poor's Corporation; (ii) any bonds or other obligations which as to principal and interest constitute direct obligations of, or are unconditionally guaranteed by, the United States of America, including obligations of any of the federal agencies set forth in clause (iii) below to the extent unconditionally guaranteed by the United States of America; (iii) obligations of the Federal National Mortgage Association, the Government National Mortgage Association, the Federal Financing Bank, the Federal Intermediate Credit Banks, Federal Banks for Cooperatives, Federal Home Loan Banks, Farmers Home Administration and Federal Home Loan Mortgage Association; (iv) negotiable certificates of deposit issued by any bank or trust company organized under the laws of any state of the United States of America or any national banking association, provided that such certificates of deposit must be purchased directly from such bank, crust company or national banking association and must be either (a) continuously and fully insured by the Federal Deposit Insurance Corporation, or (b) continuously and fully secured by such securities as are described in clauses (ii) and (iii) above which (1) have a markec value (exclusive of accrued interest) at all times at least equal to the principal amount of such certificates of deposit, (2) are lodged with the particular fund custodian or an agent acting solely on behalf of the particular fund custodian, and (3) are subject to a security interest in favor of the particular fund custodian and not subject to any security incerest in favor of any other person. Additionally, the bank, trust company or national banking association issuing each such certificate of deposit required to be so secured must furnish the particular fund custodian with an undertaking satisfactory to it that the aggregate market value of all such obligations securing each such certificate of deposit will at all times be an amount equal to the principal amount of each such certificate of deposit; (v) any repurchase agreement with any bank organized under the laws of any state of the United States of America or any national banking association, provided if such bank's or association's principal office is located outside Cobb County, such bank or association either (a) has a long term debt rating by Moody's Investors Service and Standard & Poor's Corporation at least as high as the rating on the Series 1993 9 Bonds and in no event lower than "A," or (b) has a capital and surplus at least equal to $100,000,000; provided that such repurchase agreement is secured by anyone or more of the securities described in clauses (ii) and (iii) above and in the manner described in clause (iv) above; and ... (vi) pooled investment programs sponsored by the State of Georgia for the investment of local government funds. "Phase I Capital Improvement Program" means the Smyrna Master Plan, Phase I: Community Center and Library Project No. 88190, dated September, 1989, prepared by the Sizemore Floyd Architects, Atlanta, Georgia, for the Authority and the City. "Phase II Capital Improvement Program" shall mean the report dated November, 1994, prepared by Sizemore Floyd Architects, Atlanta, Georgia, for the Lessee and the Authority. "Prior Bonds" means collectively the Outstanding Series 1989 Bonds, the Outstanding Series 1990 Bonds and the Series 1993 Bonds. "Prior Resolution, Resolutions" means collectively the the 1990 Resolution and the 1993 Resolution. Original "Proj ect Fund" shall mean the Downtown Smyrna Development Authority Project Fund created in the Original Resolution. "Project Fund Depository" means initially [Smyrna Bank and Trust Co., Smyrna, Georgia], its successors and assigns or any successor depository for the Project Fund hereafter appointed by .. the Authority with the approval of the Lessee; provided, however, the proj ect Fund Depository shall at all times be a commercial bank. "Resolution" means the Original Resolution, as ratified, reaffirmed, broadened and extended by the 1990 Resolution, the 1993 Resolution and the 1994 Resolution, and as same may hereafter be supplemented from time to time. "Revenue Bond Law" means the Revenue Bond Law, Title 36, Chapter 82, Article 3 of the Official Code of Georgia Annotated, as amended, and as same may hereafter be amended from time to time. "Series 1989 Bonds" means the $6,430,000 aggregate principal amount of the Authority's Revenue Bonds, Series 1989 issued pursuant to the Original Resolution. "Series 1990 Bonds" means the $8,690,000 aggregate principal amount of the Authority's Revenue Bonds, Series 1990 issued pursuant to the Resolution, including specifically Section 1 of the 1990 Resolution. ... 132392.1 10 "Series 1993 Bonds" means the $11,985,000 aggregate principal amount of the Authority's Revenue Refunding Bonds, Series 1993 authorized to be issued pursuant to the Resolution, including specifically Section 1 of the 1993 Resolution. "Series 1994 Bonds" means the not to exceed $7,650,000 .... aggregate principal amount of the Authority's Revenue Bonds, Series 1994 authorized to be issued pursuant to the Resolution, including specifically Article II of the 1994 Resolution. "Sinking Fund" shall mean the Downtown Smyrna Development Authority Sinking Fund created in Article V, Section 1 of the Original Resolution, as ratified, reaffirmed, broadened and extended by the 1990 Resolution, 1993 Resolution and 1994 Resolution. "Sinking Fund Custodian" means initially [Smyrna Bank and Trust Co., Smyrna, Georgia,] its successors and assigns, or any successor custoolan for the Sinking Fund hereafter appointed by the Authority; provided, however, the Sinking Fund Custodian shall at all times be a commercial bank or trust company. "Sinking Fund Year" shall mean the period commencing on the 2nd day of February in each year and extending through the 1st day of February in the next year. ARTICLE II REPRESENTATIONS -- Section 2.1. Re'Dresentations bv the Authoritv. The Authority makes the following representations as the basis for the undertakings on its part herein contained: (a) The Authority is authorized to enter into the transactions contemplated by this Lease and to carry out its obligations hereunder, has been duly authorized to execute and deliver this Lease and will do or cause to be done all things necessary to preserve and keep in full force and effect its status and existence; (b) The issuance and sale of the Bonds, the execution and delivery of this Lease, the adoption of the Resolution, and the performance of all covenants and agreements of the Authority contained in this Lease and the Resolution and of all other acts and things required under the Constitution and laws of the State of Georgia to make this Lease a valid and binding obligation of the Authority in accordance with its terms are authorized by law and have been duly authorized by proceedings of the Authority adopted at public meetings thereof duly and lawfully called and held; ..... 132392.1 11 .. (c) The Authority has not made, done, executed or suffered, and warrants that it will not make, do, execute or suffer, any act or thing whereby its title to and interest in the Leased Facilities will or may be impaired or encumbered in any manner except as permitted herein and in the Resolution and except for acts or things done or permitted by the Lessee; and (d) There is no litigation or proceeding pending, or to the knowledge of the Authority threatened, against the Authority or against any person having a material adverse effect on the right of the Authority to execute this Lease or the ability of the Authority to comply with any of its obligations under this Lease. Section 2.2. ReDresentations and Aareements bv the Lessee. The Lessee makes the following representations and agreements: (a) The Lessee is a political subdivision under the laws of the State of Georgia having power to enter into and execute and deliver this Lease and, by proper action of its governing body, has authorized the execution and delivery of this Lease and the taking of any and all such actions as may be required on its part to carry out, give effect to and consummate the transactions contemplated by this Lease and the Resolution, and no approval or other action by any governmental authority, agency, or other person is required in connection with the delivery and performance of this Lease by it except as shall have been obtained as of the date hereof; ... (b) This Lease has been duly executed and delivered by the Lessee and constitutes its legal, valid and binding obligation enforceable in accordance with its terms, except as enforcement may be limlted by the application of equitable principles; (c) The Lessee does not rely on any warranty of the Authority, either express or implied, except as provided herein, as to any title to or condition of the Leased Facilities or that the Leased Facilities will be suitable to the Lessee's needs, and the Lessee recognizes that the Authority is not authorized to expend any funds for the Leased Facilities other than rental revenue received by it therefrom hereunder or the proceeds of the Bonds; (d) The authorization, execution, delivery and performance by the Lessee of this Lease and compliance by the Lessee with the provisions thereof do not violate the laws of the State of Georgia relating to the Lessee or constitute a breach of or a default under, any other law, court order, administrative regulation or legal decree, or any agreement or other instrument to which it is a party or by which it is bound; 132392.1 12 ~ (e) There is no litigation or proceeding pending, or to the knowledge of the Lessee threatened, against the Lessee or any other person having a material adverse affect on the right of the Lessee to execute this Lease or its ability to comply with any of its obligations under this Lease. .. (f) During the Lease Term, the Lessee shall restrict the extent and nature of the use of the Leased Facilities for "private business use" as said term is defined in Section 141 of the Internal Revenue Code of 1986, as amended, so as to preserve the exclusion from gross income for federal income taxation purposes applicable to the interest paid on the Bonds. The Lessee will not enter into subleases or management contracts for portions of the Leased Facilities with any person or entity other than a governmental unit. The Lessee will permit the use of the Leased Facilities by non-exempt persons only for short periods of time on a rate-scale basis so that the rights and interests of such non-exempt persons shall be only those of a transient occupant rather than full legal possessory interests. The Lessee may enter into concessionaire contracts provided the following conditions are met: (i) The contract (including renewal options) does not exceed five years; (ii) Compensation to the concessionaire is not based on net profits from the operat~ons; ... (iii) The Lessee (or Authority) has the option to cancel the contract without penalty at the end of any three year per~od; and (iv) At least 50 percent of the compensation to the concessionaire must be on a fixed fee basis (i.e. the other portion can be on the basis of gross revenue). ARTICLE III LEASING; ISSUANCE OF BONDS; PROCEEDS; COMMENCEMENT AND COMPLETION OF THE PROJECTS Section 3.1. Leasina. The Authority hereby leases to the Lessee, and the Lessee hereby leases from the Authority, the Leased Facilities at the rental set forth in Section 4.3 hereof and in accordance with the provisions of this Lease. The Authority makes no warranties to the Lessee with respect to the Leased Facilities. Section 3.2. Aareement to Issue the Bonds: ADDlication of Bond Proceeds. The Authority agrees that it will validate and cause to be issued the Series 1994 Bonds, the proceeds of which shall be applied as provided in the 1994 Resolution and the City ...... 132392.1 13 hereby approves the issuance of the Series 1994 Bonds as set forth in the 1994 Resolution. Section 3.3. Pro1ect Fund Monevs. The City and the Authority agree to cooperate with each other and will take such action to the extent reasonably necessary to apply for and/or ... receive any grants, gifts or donations to be applied to the cost of additions, extensions and improvements to the Leased Facilities in accordance with the Phase II Capital Improvement Program or any program or report approved and ratified by the Authority and the City with respect to any issue of Bonds. Any costs and expenses incurred in connection with the issuance and delivery of any Bonds not paid by the purchaser of any Bonds shall be borne by the City and shall be paid for the account of the City. The City shall provide the moneys necessary to complete the Phase II Capital Improvement Program. Section 3.4. Phase I Pro1ects Comcleted. The acquisition, construction, installation and equipping of the projects described in the Phase I Capital Improvement Program have been completed. Section 3.5. Aqreement to Construct the Pro;ects. (a) The Authority has heretofore appointed, and hereby reaffirms the appointment of, the Lessee as its agent to proceed forthwith with the Phase II Capital Improvement Program. The Lessee shall obtain or cause to be obtained all necessary approvals from any and all governmental agencies requisite to undertaking the Phase II Capital Improvement Program and the projects described in the Phase II Capital Improvement Program shall be acquired, ... constructed and installed in compliance with all federal, state and local laws, ordinances and regulations applicable thereto. The Lessee will take or cause to be taken such action and institute or cause to be instituted such proceedings as it shall deem appropriate to cause and require all contractors and suppliers of materials to complete their contracts, including the correcting of any defective work, and the Authority agrees that the Lessee may, from time to time, in its own name, or in the name of the Authority, take or cause to be taken such action as may be necessary or advisable, as determined by the Lessee, to assure that the construction and the installation of such projects will proceed in an efficient and workmanlike manner. Any amounts recovered by way of damages, refunds, adjustments or otherwise in connection with the foregoing shall (i) if Lessee has corrected at its own expense the matter which gave rise to such default or breach, be paid to the Lessee or (ii) if Lessee has not corrected at its own expense the matter which gave rise to such default or breach, be paid into the Project Fund. (b) The Lessee, as agent for the Authority, shall acquire, construct, install and equip, or cause to be acquired, constructed, installed and equipped, the proj ects described in the Phase II Capital Improvement Program with all reasonable dispatch and shall ....- 132392.1 14 use its best efforts to cause the acquisition, construction, installation and equipping to be completed as soon as may be practical, delays incident to strikes, riots, acts of God or the public enemy beyond the reasonable control of the Lessee excepted; but if for any reason such acquisition, construction and installation is not completed by any specified date there shall be .. no resulting liability on che part of the Lessee. All real or tangible personal property acquired from time to time by the Lessee as agent for the Authority in accordance herewith has been or shall be transferred, by appropriate deed or other instrument, to the Authority subject only to Permitted Encumbrances; and the Authority has or shall accept title to such property which shall constitute a part of the Leased Facilities. (c) The Lessee shall create on its books and records special accounts for the Project Fund as to any issue of Bonds providing Project Fund moneys, a separate account each of which has been designated as "Series Capital Improvement Account" (hereinafter referred to as a "Capital Improvement Account"). The moneys credited to the Series 1989 Capital Improvement Account and Series 1990 Capital Improvement Account were used and applied for the purpose of paying the cost of the projects described in the Phase I Capital Improvement Program and otherwise disbursed as herein provided. The moneys credited to the Series 1994 Capital Improvement Account shall be used and applied for the purpose of paying the cost of the projects described in the Phase II Capital Improvement Program and otherwise disbursed as herein provided. The moneys derived from the sale of any Additional Bonds under the Resolution (other than Additional Bonds issued to refund outstanding Bonds) to be credited to any future Capital Improvement ~ Account shall be used and applied for the purpose of paying the cost of additions, extensions and improvements to the Leased Facilities in accordance wich che capital improvement program or reporc approved and ratified by the Authority and the City with respecc to each such issue of Additional Bonds. (d) All payments from the Project Fund shall be made upon checks signed by the officers of the City properly authorized to sign on its behalf, but before they shall sign any such checks there shall be filed with the Project Fund Depository: (1) A requisition for such payment (the above-mentioned checks may be deemed a requisition for the purpose of this Section), stating each amount to be paid, and the name of the person, firm or corporation to whom payment thereof is due; and (2) A certificate signed by such officers, attached to the requisition and certifying: (i) That an obligation in the stated amount has been incurred by the City on behalf of the Authority, and that che same is a proper charge against the Project Fund and has "., 132392.1 15 not been paid, specifying the purpose and circumstances of such obligation in reasonable detail and to whom such obligation is owed, accompanied by the bill or statement of account for such obligation, or a copy thereof; .. (ii) That they have no notice of any vendor's, mechanic's or other liens or rights to liens, chattel mortgages, conditional sales contracts or any security interest, which should be satisfied or discharged before such paYment is made; (iii) That such requisition contains no item representing paYment on account or any retained percentages which the Authority or the City is, at the date of such certificate, entitled to retain; and (iv) That insofar as such obligation was incurred for work, materials, supplies or equipment in connection with the undertaking, such work was actually performed, or such materials, supplies or equipment were actually installed in or about the construction or delivered at the site of the work for that purpose; and (e) Simultaneously with any paYment from the Project Fund with respect to the acquisition of any real property (or interests therein), the City shall cause to be transferred to the Authority such real property (or interests therein), free of any liens and encumbrances, and the same shall constitute part of the Leased Facilities. .. (f) The City will do or cause to be done all things, and take or cause to be taken all reasonable and prudent measures, necessary to continue construction with due diligence and to expend the moneys credited to each Capital Improvement Account in the Project Fund as expeditiously as possible in order to assure the completion of the projects for which such accounts were created, on the earliest practicable date, and will indemnify itself against the usual hazards incident to the construction of such projects, and without in any way limiting the generality of the above, agrees to: (a) require each construction contractor, and each subcontractor to furnish a bond, or bonds, of such type and in amounts adequate to assure the faithful performance of their contracts and the paYment of all bills and claims for labor and material arising by virtue of such contract; and (b) require each construction contractor or the subcontractor to maintain at all times until the completion and acceptance of the undertaking adequate compensation insurance for all of their employees and adequate public liability and property damage insurance for the full and complete protection of the Authority or the City from any and all claims of every kind and character which may arise by virtue of the operations under their contracts, whether such operations be by itself or by anyone directly or indirectly for it, or under its control. , .," 132392.1 16 (g) All requisitions and certificates required by this Section shall be retained either by the Project Fund Depository or by the Authority or the City, subject at all times to inspection by any officer of the Authority or any bondowner. Section 3.6. In Event Proi ect Fund Insufficient. The .. Authority does not make any warranty, either express or implied, that the moneys which will be paid into the Project Fund under the provisions of this Lease will be sufficient to pay all the costs of the projects which will be incurred in that connection. The Lessee agrees that, if after exhaustion of the moneys in the Project Fund the Lessee should pay any portion of the costs of the projects, it shall not be entitled to any reimbursement therefor from the Authority or from the owners of any of the Bonds, nor shall it be entitled to any diminution in or postponement or abatement of the amount of the rents and other amounts payable under Article IV hereof. Section 3.7. Investment of proiect Fund Monevs per.mitted. Any moneys held in the Project Fund shall be invested or reinvested at the direction of the City in Permitted Investments. ARTICLE IV EFFECTIVE DATE OF THIS LEASE; DURATION OF LEASE TERM; RENTAL PROVISIONS; FLOW OF FUNDS ... Section 4.1.. Effective Date of this Lease: Duration of Lease Ter.m. This Lease shall become effective as of September 1, 1989 upon its recordation in the offices of the Clerk of Superior Court and the leasehold interest created by this Lease shall then begin, and, subj ect to the other provisions of this Lease (including particularly Article VIII hereof), shall expire February 2, 2021, or if at said time and on said date all of the Bonds have not been paid in full, then on such date as such paYment shall have been made, but in no event in excess of 50 years from the date hereof. Upon said recordation hereof, the 1993 Lease shall be, and hereby is, terminated. Section 4.2. Delivery and Acce'Dtance of Possession. The Authority has heretofore delivered and the Lessee has accepted delivery of the Leased Facilities as described in the Phase I Capital Improvement Program and such delivery and acceptance is hereby ratified and reaffirmed. The Authority agrees to deliver to the Lessee sole and exclusive possession of the Leased Facilities described in the Phase II Capital Improvement Program upon delivery of the Series 1994 Bonds and the Lessee agrees to accept possession of such Leased Facilities upon such delivery. The Lessee agrees to operate, maintain and insure or cause to be operated, maintained or insured the Leased Facilities on a sound, businesslike basis and to accept delivery of additions to the Leased Facilities as herein contemplated. filii" 132392.1 17 .. ." .. section 4.3. Basic Lease Payments. On or before January 15 and July 15 of each year, the City shall make the Basic Lease Payments to the Authority. If such date is January 15, the city shall pay an amount sufficient to enable the Authority to pay the principal of and interest on the Bonds coming due on February 1, and if such date is July 15, the City shall pay an amount sufficient to pay the interest on the Bonds coming due on August 1, and such Basic Lease Payments shall continue and recontinue until provision has been made for the payment in full of the Bonds. In addition to the foregoing, each Basic Lease Payment shall include the charges as billed specified in subparagraphs (e), (f) and (g) of section 3, Article V of the original Resolution. The Basic Lease Payments provided for herein shall be made by payment directly to the sinking Fund Custodian for deposit into the sinking Fund for the account of the Authority. Prior to the issuance of the Series 1994 Bonds, the Authority will adopt a supplemental resolution, which, among other things, will set forth the interest rate or rates the series 1994 Bonds will bear, will specify the principal amount to mature in each year and the maturities of said bonds which will be designated and subject to mandatory redemption, will designate the Bond Registrar and Paying Agent for said bonds, will designate the representative of the original purchaser of said bonds and will provide for the actual issuance and delivery of the bonds to the purchaser upon payment of the agreed purchase price therefor by said purchaser. The Authority, upon the adoption of such supplemental resolution, forthwith shall furnish the City with a certified copy of such supplemental resolution in order that the annual payments due hereunder will be precisely established and upon receipt of such supplemental resolution the Mayor of the City, acting for and on behalf of the City, shall acknowledge receipt of such supplemental resolution and the Clerk of the City shall record such certified copy in the Minute Book of the Mayor and Council of the city. section 4.4. ot:>>eratina EXlJenses. The City shall payor cause to be paid the reasonable and necessary costs of operating, maintaining and repairing the Leased Facilities, including salaries, wages, employee benefits, the payment of any contractual obligations incurred pertaining to the operation of the Leased Facilities, cost of materials and supplies, rentals (excluding Basic Lease Payments) of leased property, real or personal, insurance premiums, audit fees, any incidental expenses of the Authority and such other charges as may properly be made for the purpose of operating, maintaining and repairing the Leased Facilities in accordance with sound business practice. 132392.1 18 -- .. '- to be discharged, or make provision for, any such lien, security interest or charge, so long as the validity thereof shall be contested in good faith and by appropriate legal proceedings. Section 5.4. Insurance. That, to the extent deemed necessary, it will cause to be bonded its employees or agents handling funds of the Leased Facilities in amounts adequate for its protection and it shall procure and maintain or cause to be maintained insurance on the physical properties of the Leased Facilities of the kinds and in the amounts normally carried by private companies or other agencies engaged in the operation of similar properties so long as any Bonds are outstanding. Such insurance shall include: (a) fire and extended coverage insurance on the insurable portions of the Leased Facilities with a responsible insurance company or companies authorized and qualified to do business under the laws of the State of Georgia; (b) public liability insurance relating to the operation of the Leased Facilities; and (c) vehicular public liability insurance on any vehicle owned or operated by the City and used in the operation of the Leased Facilities. Such insurance may provide reasonable and customary coverage and deductibles for agencies and governmental authorities operating similar facilities, provided that such insurance in such amount is available at a cost which, in the opinion of the City, will not impose an unreasonable financial burden, or the City may self insure against such claims and risks, or the City, in its discretion, may provide for any combination of the foregoing. The proceeds of such fire and extended coverage policies are pledged as security for the Basic Lease Payments, but shall be available for and shall, to the extent necessary and desirable, be applied to the repair and replacement of the damaged or destroyed property. In the event the proceeds of such policies are not used for that purpose, then same shall be deposited in the Sinking Fund. Proceeds from the fidelity bonds on employees and agents shall be paid into the appropriate fund. All insurance policies and fidelity bonds shall be open to the inspection of the bondowners or their duly authorized representatives at all reasonable times. All insurance policies shall name the Authority as an additional insured. Section 5.5. Sale of Assets. That so long as any of the Bonds shall be outstanding, and except as in this Lease otherwise permitted or provided for, it will not encumber the Leased Facilities or any part thereof, and it will not sell or otherwise dispose of the Leased Facilities or any integral part thereof, except it may request the Authority to sell the Leased Facilities, and the Authority shall sell the Leased Facilities if requested by the City, as a whole, or substantially as a whole, if the proceeds of such sale be at least sufficient to provide for the payment of all Bonds secured by this Lease and any interest accrued or to accrue thereon, and that the proceeds of any such sale shall be deposited in trust and applied by the Authority to the extent necessary to purchase or redeem such Bonds. Nothing contained herein, however, shall preclude sale of a part of the Leased 132392.1 22 Section 4.5. Bonds. Ootional Prepavment of Rent: Redemction of ... (a) The rent due under Section 4.3 shall be subj ect to prepayment, in whole or in part, for the purpose of calling and redeeming, at the option of the City, all or part of the Bonds in accordance with the applicable provisions of the Resolution, provided, however, that the funds used to prepay such rent have been deposited to the Sinking Fund prior to the giving of notice to redeem by the Bond Registrar (as defined in the Resolution) to the bondowners, and the Lessee shall pay all costs which may be incurred in connection with the call of the Bonds to be redeemed together with any applicable redemption premium. (b) No prepayment of any amount of rent in accordance with the provisions of the preceding subsection shall relieve the Lessee to any extent from its obligations thereafter to make the full Basic Lease Payments required by the provisions hereof until all the Bonds issued under the Resolution and the interest thereon and the charges of the Bond Registrar and Paying Agent (as defined in the Resolution) have been paid in full. Upon any prepayment of rent, as authorized by the preceding subsection, in part, the Bonds to be redeemed shall be called for redemption by lot or in such other manner prescribed by the Resolution. Upon the prepayment of such rent in whole, the amount of such prepayment shall be used to retire all outstanding Bonds in the manner provided in, and subject to, the Resolution. Section 4.6. Obliqations of Lessee Hereunder Absolute and Unconditional. The obligation of the Lessee to make the payments ~ required in Section 4.3 hereof and to perform and observe the other agreement on its part contained herein shall be absolute and unconditional. Until such time as the principal of and interest on the Bonds outstanding under the Resolution shall have been paid in full or provision for the payment thereof shall have been made in accordance with the Resolution, the Lessee (i) will not suspend or discontinue any payments provided for in Section 4.3 hereof except to the extent the same have been prepaid, (ii) will perform and observe all of its other agreements contained in this Lease, and (iii) except as provided in Article VIII hereof, will not terminate the Lease Term for any cause, including, without limiting the generality of the foregoing, failure of the Authority's or the City's title in and to the Leased Facilities or any part thereof, failure to acquire, construct or equip all or any part of the real property as contemplated in the Capital Improvements Program, any acts or circumstances that may constitute failure of consideration, eviction or constructive eviction, destruction of or damage to the Leased Facilities, commercial frustration of purpose, any change in the tax or other laws of the United States of America or of the State of Georgia or any political subdivision of either or any failure of the Authority to perform and observe any agreement, whether express or implied, or any duty, liability or obligation arising out of or connected with this Lease or the Resolution. ... 132392.1 19 .. ,- ... Nothing contained in this Section shall be construed to release the Authority from the performance of any of the agreements on its part herein contained; and if the Authority should fail to perform any such agreement, the Lessee may institute such action against the Authority as the Lessee may deem necessary to compel performance or recover its damages for nonperformance as long as such action shall not do violence to or adversely affect the agreements on the part of the Lessee contained in the preceding sentence and to make the paYments specified in Section 4.3 hereof; provided, however any liability of the Authority shall be payable solely from rents, revenues and receipts arising from the Authority's interest in the Leased Facilities. The Lessee may, however, at its own cost and expense and in its own name or in the name of the Authority, prosecute or defend any action or proceeding or take any other action involving third persons which the Lessee deems reasonably necessary in order to insure the acquisition and construction of the Leased Facilities or to secure or protect its right of possession, occupancy and use hereunder, and in such event the Authority hereby agrees to cooperate fully with the Lessee and to take all lawful action which is required to effect the substitution of Lessee for the Authority in any such action or proceeding if the Lessee shall so request. Section 4.7. Tax Levv to Pay Basic Lease PaYments. (a) The obligations of the Lessee to make the Basic Lease PaYments when due under Section 4.3 hereof, and to perform its other obligations hereunder, are absolute and unconditional as herein provided, and the Lessee hereby pledges its full faith and credit to such paYment and performance. (b) The Lessee covenants that, in order to make any Basic Lease PaYments when due from its general funds to the extent required, it will exercise its power of taxation to the extent necessary to pay any amounts required to be paid hereunder and it will make available and use for such paYments all taxes levied and collected for that purpose together with funds received from any other source. The Lessee further covenants and agrees that in order to make funds available for such purpose, it will, in its general revenue, appropriation and budgetary measures whereby its tax funds or revenues and the allocation thereof are controlled or provided for, include sums sufficient to satisfy any such Basic Lease PaYments that may be required to be made from the general funds, whether or not any other sums are included in such measure, until all paYments so required to be made shall have been made in full. The obligation of the Lessee to make any payroents that may be required to be made from its general funds shall constitute a pledge of the full faith and credit of the Lessee to provide the funds required to fulfill any such obligation. (c) In the event for any reason any such provision or appropriation is not made as provided in the preceding subsection 132392.1 20 .,. (b), then the fiscal officers of the Lessee are hereby authorized and directed to set up as an appropriation on their accounts in the appropriate fiscal year the amounts required to pay the obligations which may be due from the general funds. The amount of such appropriation shall be due and payable and shall be expended for the purpose of paying any such obligations, and such appropriation shall have the same legal status as if the Lessee had included the amount of the appropriation in its general revenue, appropriation and budgetary measures, and the fiscal officers of the Lessee shall make such Basic Lease PaYments to the Sinking Fund Custodian for deposit to the Sinking Fund if for any reason the paYment of such obligations shall not otherwise have been made. ARTICLE V SPECIAL COVENANTS OF CITY The City covenants and agrees with the Authority for the benefit of the bondowners as follows: 'filii"" Section 5.1.. Rules and Requlations. That it will enforce or cause to be enforced reasonable rules and regulations governing the Leased Facilities and the operation thereof, and that all compensation, salaries, fees and wages paid or caused to be paid by it in connection with the operation, repair and maintenance of the Leased Facilities will be reasonable, and that no more persons will be employed than are necessary, and that it will operate or cause to be operated same in an efficient and economical manner, and will at all times maintain or cause to be maintained the same in good repair and in sound operating condition, and will make or cause to be made all necessary repairs, renewals and replacements, and that it will comply or cause to be complied with all valid acts, rules, regulations, orders and directions of any legislative, executive, administrative or judicial body applicable to such undertaking and enterprise. Section 5.2. Contractinq Procedure. That any contract relating to the installation, extension, improvement, maintenance or repair of any facilities shall provide for retention of amounts due thereunder in accordance with applicable law. Section 5.3. Liens. That, except as herein provided and except for Permitted Encumbrances, the City will not create or suffer to be created, in the operation and maintenance of the Leased Facilities, any lien, security interest or charge thereon, or any part thereof, and that it will pay, or cause to be discharged, or will make adequate provisions to satisfy and discharge, within 60 days after the same shall accrue, all lawful claims and demands for labor, materials, supplies or other objects, which, if unpaid, might by law become a lien upon the Leased Facilities, or any part thereof; provided, however, that nothing contained in this Section shall require the City to pay, or cause ..... 132392.1 21. .. Facilities, if the proceeds from such sale are used for other public projects to be owned and operated by the City within the geographic jurisdiction of the Authority, or for extensions and improvements to the Leased Facilities, or deposited with the Sinking Fund Custodian as prepayment of rent due hereunder and applied toward the purchase or redemption of Bonds. ...., Section 5.6. Arbitraqe. The City hereby covenants and agrees that it will not, subsequent to the date of issuance and delivery of any Bonds, intentionally use any portion of the proceeds of any Bonds to acquire higher yielding investments, except as may be otherwise permitted by Section 148 of the Internal Revenue Code of 1986, as amended (the "Code") and that, as directed by the Authority in order to fulfill the Authority's obligations under Article VII, Section 5 of the Original Resolution, as ratified, reaffirmed, broadened and extended by the other Prior Resolutions it will comply with, and take such action and make such payments as may be permitted or required by Section 148(f) of the Code, to ensure that the Bonds do not constitute "arbitrage bonds" within the meaning of Section 148(a) of the Code and that it will expend the proceeds from the sale of the Bonds and will take such action as may be necessary so that the interest on the Bonds will be and will remain excluded from gross income of the owners for federal income tax purposes, including without limitation, compliance with provisions of Sections 141-149 of the Code, as applicable. All expenses incurred by the Authority in connection with its obligations under Article VII, Section 5 of the Original Resolution as ratified, reaffirmed, broadened and extended by the other Prior Resolutions shall be paid by the City. The obligations of the City under this Section 5.6 shall survive termination of this Lease. ARTICLE VI SPECIAL COVENANTS OF AUTHORITY AND CITY Section 6.1. No Warranty of Condition or Suitability by the Authority. The Authority makes no warranty, either express or implied, as to the condition of the Leased Facilities or that it will be suitable for the Lessee's purposes or needs. Section 6.2. InsDection of the Leased Facilities. The Lessee agrees that the Authority, the bondowners and their duly authorized agents who are acceptable to the Lessee shall have the right at reasonable times during business hours, subject to the Lessee's usual safety and security requirements to examine and inspect the Leased Facilities without interference or prejudice to the Lessee's operations. Section 6.3. Grantinq of Easements: Sale. If no event of default hereunder shall have happened and be continuing, the Lessee may at any time or times cause to be granted, whether to itself or '- 132392.1 23 ^, .,. otherwise, easements, licenses, rights-of-way (temporary or perpetual and including the dedication of public highways) and other rights or privileges in the nature of easements with respect to any property included in the Leased Facilities and such grant will be free from the lien or security interest of this Lease and the Resolution or the Lessee may cause to be released existing easements, licenses, rights-of-way and other rights or privileges in the nature of easements, held with respect to any property included in the Leased Facilities with or without consideration. In connection with any such grant or any sale permitted by Section 5.5 hereof, the Authority agrees that it shall execute and deliver any instrument necessary or appropriate to confirm and grant or release any such easement, license, right-of-way or other right or privilege or asset. Section 6.4. Further Assurances and Corrective Instruments. Recordinqs and Filinqs. The Authority and the Lessee agree that they will, from time to time, execute, acknowledge and deliver, or cause to be executed, acknowledged and delivered, such supplements hereto and such further instruments as may reasonably be required to perfect title in and to that portion of the Leased Facilities leased or intended so to be or for carrying out the intention of or facilitating the performance of this Lease. -- Section 6.5. Release Covenants. The Lessee releases the Authority from, covenants and agrees that the Authority shall not be liable for, all claims by or on behalf of any person arising from: (1) the conduct or management of, or from any work or thing done in or on, the Leased Facilities during the Lease Term; (ii) any condition of the Leased Facilities, (iii) any breach or default on the part of the Lessee in the performance of any of its obligations under this Lease; (iv) any act of negligence of the Lessee or of any agents, contractors, servants, employees or licensees of the Lessee or of any lessee or tenant of the Lessee; and (v) any loss or damage to property or any injury to or death of any persons occurring on or about or resulting from any defect in the Leased Facilities. ARTICLE VII EVENTS OF DEFAULT AND REMEDIES Sec tion 7. 1. Even ts of Defaul t Def ined. The f 011 owing shall be "events of defaul t" under this Lease and the terms "event of default" or "default" shall mean, whenever they are used in this Lease, anyone or more of the following events: (a) Failure by the Lessee to make the Basic Lease PaYments required to be paid under Section 4.3 hereof at the times specified therein; .. 132392.1 24 ." (b) Failure by the Lessee to observe and perfonn any covenant, condition or agreement of this Lease on its part to be observed or performed, other than as referred to in subsection (a) of this Section, for a period of 30 days after written notice, specifying such failure and requesting that it be remedied, shall have been given to the Lessee by the Authority or the bondowners, unless the Authority and the bondowners shall agree in writing to an extension of such time prior to its expiration; provided, however, if the failure stated in the notice cannot be corrected within the period specified herein, the Authority and the bondowners will not unreasonably withhold their consent to an extension of such time if it is possible to correct such failure and corrective action is instituted by the Lessee within the applicable period and diligently pursued until the default is corrected; and (c) An" event of defaul t" shall have occurred under the Resolution. Section 7.2. Remedies on Default. Whenever any event of default referred to in Section 7.1 hereof shall have happened and be subsisting, the Authority, or the bondowners as provided in the Resolution, may take anyone or more of the following remedial steps: ..... (a) If the principal and interest accrued on the Bonds shall have been declared immediately due and payable pursuant to the Resolution, the Authority or the bondowners may, at its option, declare all remaining installments of rent payable under Section 4.3 hereof for the remainder of the Lease Tenn to be immediately due and payable, whereupon the same shall become immediately due and payable. If the Authority or the bondowners elect to exercise the remedy afforded in this Section 7.2(a) and accelerates all rents payable under Section 4.3 hereof for the remainder of the Lease Tenn, the amount then due and payable by the Lessee as accelerated rent shall be the sum of (1) the aggregate principal amount of the outstanding Bonds, (2) all interest then due on the Bonds and (3) any other amounts which may be owing to the Authority pursuant to this Lease. Such sums as may then become payable shall be paid into the Sinking Fund and after the Bonds and accrued interest thereon have been fully paid and any costs occasioned by such default and the collection of the rents have been satisfied, any excess moneys in the Sinking Fund shall be returned to the Lessee as an overpayment of rents; (b) The Authority or the bondowners may seek the appointment of a receiver for the Leased Facilities; (c) The Authority or the bondowners may require the Lessee to furnish copies of all books and records of the Lessee pertaining to the Leased Facilities; .." 132392.1 25 ~ (d) The Authority or the bondowners may take whatever action at law or in equity may appear necessary or desirable to collect the rents then due and thereafter to become due, or to enforce performance and observance of any obligation, agreement or covenant of the Lessee under this Lease; and ... (e) The Authority or the bondowners may exercise any remedies provided for in the Resolution. Any amounts collected pursuant to action taken under this Section shall be paid into the Sinking Fund and applied in accordance with the provisions of the Resolution or, if paYment in full of the outstanding Bonds has been made (or provision for paYment thereof has been made in accordance with the provisions of the Resolution) , to the Lessee. .... Section 7.3. No Remedy Exclusive. No remedy herein conferred upon or reserved to the Authority or the bondowners is intended to be exclusive of any other available remedy or remedies, but each and every such remedy shall be cumulative and shall be in addition to every other remedy given under this Lease or now or hereafter existing at law or in equity or by statute. No delay or omission to exercise any right or power accruing upon the occurrence of any event of default shall impair any such right or power or shall be construed to be a waiver thereof, but any such right and power may be exercised from time to time and as often as may be deemed expedient. In order to entitle the Authority or the bondowners to exercise any remedy reserved to it in this Article, it shall not be necessary to give any notice, other than such notice or notices as may be herein expressly required. Such rights and remedies as are given to the Authority hereunder shall also extend to the bondowners, and the owners of the Bonds shall be deemed third party beneficiaries of all covenants and agreements herein contained. Section 7.4. Aqreement to Pay Attornevs' Fees and Excenses. If the Lessee should default under any of the provisions of this Lease and either or both the Authority or the bondowners should employ attorneys or incur other expenses for the collection of rents or the enforcement of performance or observance of any obligation or agreement on the part of the Lessee herein contained, the Lessee agrees that it shall on demand therefor pay to the Authority and the bondowners the reasonable fee of such attorneys and such other reasonable expenses so incurred by the Authority and the bondowners. Section 7.5. No Addi tional Waiver Imt)lied by One Waiver. If any agreement contained in this Lease should be breached by either party and thereafter waived by the other party, such waiver shall be limited to the particular breach so waived and shall not be deemed to waive any other breach hereunder. .... 132392.1 26 . . ARTICLE VIII OPTION OF LESSEE .,. Section 8.~. Unaualified Ootion to Purchase. On and after the effective date of this Lease and during the Lease Term and for 365 days after the expiration thereof, the Lessee shall have the unconditional right and option to purchase the Leased Facilities at any time. Section 8.2. Purchase Price. The purchase price payable if the Lessee purchases the Leased Facilities pursuant to the provisions of this Article VIII shall be $100 to be paid to the Authority plus the full amount necessary under the provisions of the Resolution to cause the payment in full of the Bonds (including, without limitation, principal, interest, expenses of redemption and the Paying Agent's and Bond Registrar's fees accrued and to accrue through final payment of the Bonds and all other liabilities of the Lessee accrued under this Lease). In any case, if no principal installment on the Bonds shall be outstanding at the time of purchase, or the redemption or payment of the Bonds shall be or have been otherwise provided for, the purchase price of the Leased Facilities shall be $100 to be paid to the Authority. .. Section 8.3. Procedure For Exercisinq Option to Purchase. The Lessee may exercise its option to purchase hereunder by giving written notice to the Authority of its intention to purchase the Leased Facilities pursuant to the provisions of this Article VIII specifying the time and place of closing and by giving notice to the Authority. At the closing the Authority shall, upon payment of the purchase price hereinabove specified, deliver to the Lessee appropriate conveyance instruments transferring all of its right, title and interest in and to the Leased Facilities. ARTICLE IX MISCELLANEOUS Section 9.~. Notices. All notices, certificates or other communications hereunder shall be sufficiently given and shall be deemed given when mailed by registered or certified mail, return receipt requested, postage prepaid. Section 9.2. Bindinq Effect. This Lease shall inure to the benefit of and shall be binding upon the Authority, the Lessee and their respective successors and assigns, subject, however, to the limitations contained in this Lease. Section 9.3. Severability. If any provision of this Lease shall be held invalid or unenforceable by any court of competent jurisdiction, such holding shall not invalidate or render unenforceable any other provision hereof. -- 132392.1 27 !I .. Section 9.4. Amounts Remainina in Sinkina Fund. It is agreed by the parties hereto that, subject to and in accordance with the terms and conditions of the Resolution certain surplus moneys remaining in the Sinking Fund shall belong to and be paid to the Lessee by the Authority as an overpayment of rents. ..,. Section 9.5. Amendments. Chanaes and Modifications. Except as otherwise provided in this Lease or in the Resolution, prior to payment in full of all Bonds (or provision for the payment thereof having been made in accordance with the provisions of the Resolution), this Lease may not be effectively amended, changed, modified, altered or terminated without the requisite concurring written consent of the bondowners in accordance with the Resolution. Section 9.6. Execution Countercarts. This Lease may be simul taneously executed in several counterparts, each of which shall be an original and all of which shall constitute but one and the same instrument. Section 9.7. CaDtions. The captions and headings in this Lease are for convenience only and in no way define, limit or describe the scope or intent of any provisions of this Lease. Section 9.8. Law Governina Construction of Lease. This Lease shall be governed by, and construed in accordance with, the laws of the State of Georgia. .. Section 9.9. Redemotion of Bonds. The Authority, at the request at any time of the Lessee, shall take all steps that may be proper and necessary under the applicable redemption provisions of the Resolution to effect the redemption of all or part of the then outstanding Bonds as may be specified by the Lessee, on the earliest redemption date on which such redemption may be effected. It is understood that all expenses of such redemption shall be paid by the Lessee and not from other funds of the Authority. The Authority shall cooperate with the Lessee in effecting any purchase or redemption of the Bonds. Section 9.1.0. Net Lease. This Lease shall be deemed a "net lease," and the Lessee shall pay absolutely net during the Lease Term the rents, revenues and receipts pledged hereunder, without abatement, deduction or set-off other than those herein expressly provided. Section 9.1.1.. ODera tina Contracts. Nothing contained in this Lease shall affect or impair any existing agreements or contracts between the City and the Authority regarding the operation and management of the Leased Facilities. -. 132392.1 28 , . .... .", --. IN WITNESS WHEREOP, the Authority and the Lessee have caused this Lease to be executed in their respective corporate names and their respective corporate seals to be hereunto affixed and attested by their duly authorized officers, by the Authority on November 22, 1994 and by the Lessee on November 21, 1994, effective as of the date first above written. THE AUTHORITY: DOWNTOWN SKYRNA DEVELOPMENT AUTHORITY (Corporate Seal) By: Chairman Attest: Secretary and Treasurer As to the Authority, signed in the presence of: Witness Notary Public My commission expires: (Notarial Seal) 132392.1 29 ~ . . .. ." .. .... THE LESSEE: (Seal) Attest: Clerk As to the Lessee, signed in the presence of: Witness Notary Public My commission expires: (Notarial Seal) 132392.1 CITY OF SMYRNA By: 30 Mayor .. .. '" . .,. .! ... EXHIBIT A Real Property All real property owned by the Authority located in Cobb County, Georgia. " ... ... BOND RESOLUTION A RESOLUTION TO PROVIDE FOR THE ISSUANCE OF DOWNTOWN SMYRNA DEVELOPHENT AUTHORITY REVENUE BONDS, SERIES 1994, IN THE AGGREGATE PRINCIPAL AMOUNT OF NOT TO EXCEED $7,650,000 PURSUANT TO AND IN CONFORMITY WITH A RESOLUTION ADOPTED SEPTEMBER 5, 1989, AS SUPPLEHENTED NOVEMBER 8, 1989, A RESOLUTION ADOPTED FEBRUARY 5, 1990, AS SUPPLEHENTED AND AMENDED MARCH 22, 1990 AND APRIL 2, 1990 AND A RESOLUTION ADOPTED MARCH 11, 1993 AND PURSUANT TO THE CONSTITUTION AND STATUTES OF THE STATE OF GEORGIA; TO PROVIDE FUNDS TO PAY OR TO BE APPLIED TOWARD THE COST OF THE ACQUISITION, CONSTRUCTION, RENOVATION AND EQUIPPING OF BUILDINGS AND RELATED FACILITIES FOR THE REDEVELOPHENT OF THE DOWNTOWN AREA OF THE CITY OF SMYRNA; TO PROVIDE FUNDS TO BE APPLIED TOWARD THE COST OF THE OVERALL UNDERTAKING NOW CONTEMPLATED; TO RATIFY, REAFFIRM AND ADOPT ALL APPLICABLE TERMS, PROVISIONS, COVENANTS AND CONDITIONS OF THE RESOLUTIONS OF SEPTEMBER 5, 1989, NOVEMBER 8, 1989, FEBRUARY 5, 1990, MARCH 22, 1990, APRIL 2, 1990 AND MARCH 11, 1993; TO APPROVE, AUTHORIZE AND PROVIDE FOR THE EXECUTION OF A THIRD AMENDED AND RESTATED LEASE CONTRACT, DATED AS OF SEPTEMBER 1, 1989, WITH THE CITY OF SMYRNA; TO PROVIDE FOR THE CREATION AND MAINTENANCE OF CERTAIN FUNDS; TO PROVIDE FOR THE ISSUANCE UNDER CERTAIN CIRCUMSTANCES OF ADDITIONAL PARITY BONDS; TO AUTHORIZE AND DIRECT THE EXECUTION OF A CERTIFICATE PERTAINING TO THE PROCEEDS DERIVED FROM THE SALE OF THE SERIES 1994 BONDS; TO DESIGNATE THE SERIES 1994 BONDS AS "QUALIFIED TAX-EXEMPT OBLIGATIONS" WITHIN THE HEANING OF SECTION 265 (b) (3) OF THE INTERNAL REVENUE CODE OF 1986, AS AMENDED; TO AUTHORIZE THE PREPARATION, USE AND DELIVERY OF A PRELIMINARY OFFICIAL STATEHENT AND OFFICIAL STATEMENT IN CONNECTION WITH THE OFFER AND SALE OF THE SERIES 1994 BONDS; AND TO PROVIDE FOR THE REMEDIES OF THE OWNERS OF THE SERIES 1994 BONDS, AND FOR OTHER PURPOSES: WHEREAS, pursuant to an amendment to Article VII, Section VII, Paragraph I of the Constitution of the State of Georgia of 1945 (Georgia Laws 1970, p. 1117 et seq.) and now specifically continued pursuant to an Act of the General Assembly (Georgia Laws 1986, p. 3957 et seq.) as a part of the Constitution of the state of Georgia of 1983, and under the provisions of Georgia Laws 1989, p. 4382 et seq., known as the "Downtown Smyrna Development Authority Act" (the "Authority Act") there was created a body corporate and politic, designated as the "Downtown Smyrna Development Authority" (hereinafter sometimes referred to as the "Authority") and the Authority is deemed to be a political subdivision of the State of Georgia and a public corporation, which Authority has been duly activated and organized and its members are now performing their duties and are serving in the furtherance of the purpose for which the Authority was created; and WHEREAS, the Authority is authorized to undertake the acquisition, construction, remodeling, altering, renovating, equipping, maintaining and operating of buildings, both private and public, and the usual and convenient facilities appertaining to .. such undertakings and extension and improvement of such buildings; . ... ....... ... the acquisition of parking facilities or parking areas in connection therewith; the construction, reconstruction, alteration, changing and closing of streets, roads, and alleys; the acquisition of the necessary property therefor, both real and personal; and the lease and sale of any part or all of such buildings, including real and personal property, so as to assure the efficient and proper development, maintenance and operation of such buildings, streets, roads and alleys deemed by the Authority to be necessary, convenient or desirable in connection therewith; and WHEREAS, the City of Smyrna (the "City") and the Authority, after an investigation and study of the current capital needs and the desirability for the redevelopment of the downtown Smyrna area, have heretofore determined that there was an urgent need for certain capital improvements to be made; and WHEREAS, the City and the Authority determined that such improvements and other undertakings should be accompl ished in accordance with, or substantially in accordance with, the report entitled "Smyrna Master Plan; Phase I: Community Center and Library, Project No. 88190," dated September, 1989, prepared by Sizemore Floyd Architects, Atlanta, Georgia, said report being hereinafter referred to as the "Phase I Capital Improvement Program"; and WHEREAS, the Authority heretofore determined that the best method of raising the moneys required to finance such undertaking was by the issuance and sale of its revenue bonds for such purpose; and WHEREAS, to finance a portion of the cost of the undertaking, the Authority heretofore authorized, pursuant to that certain bond resolution adopted September 5, 1989, as supplemented by a resolution adopted November 8, 1989 (the "Original Resolution") the issuance of, and actually issued and delivered, $6,430,000 aggregate principal amount of its Revenue Bonds, Series 1989, dated November 1, 1989 (the "Series 1989 Bonds") in the form of fully registered bonds without coupons, transferable to subsequent owners as therein provided, bearing interest from date at the rate per annum set forth below opposite each principal maturity, all interest payable August 1, 1990 and semiannually thereafter on the 1st days of February and August in each year, and the principal maturing on the 1st day of February, in the years and amounts, as follows: 133202.1 -2- . Year Amount Rate Year Amount Rate 1993 $ 50,000 6.25% 2003 $ 215,000 6.75 % 1994 120,000 6.30 2004 230,000 6.80 1995 125,000 6.35 2005 245,000 6.85 .. 1996 135,000 6.40 2006 265,000 6.90 1997 145,000 6.45 2007 285,000 7.00 1998 150,000 6.50 2008 305,000 7.00 1999 165,000 6.55 2009 330,000 7.00 2000 175,000 6.60 2010 355,000 7.00 2001 185,000 6.65 2016 2,750,000 7.125 2002 200,000 6.70 of which Series 1989 Bonds there is now outstanding $2,235,000 taking into account the refunding of the Refunded Series 1989 Bonds hereinafter described (the "outstanding Series 1989 Bonds") and said outstanding Series 1989 Bonds had as security for the payment thereof and interest thereon certain revenues of the Authority to be received pursuant to the Original Lease (hereinafter defined); and .... WHEREAS, all of the facilities acquired, constructed and equipped pursuant to the Phase I Capital Improvement Program (the "Leased Facilities") were leased to the City pursuant to a Lease Contract, dated as of September 1, 1989, between the Authority and the City (the "Original Lease") and the City agreed to operate and maintain the Leased Facilities financed with the proceeds of the Series 1989 Bonds and any additional bonds ranking on a parity with the Series 1989 Bonds; and WHEREAS, the Original Lease obligated the City to make Basic Lease Payments (hereinafter defined) in an amount sufficient to enable the Authority to pay principal of and interest on the Series 1989 Bonds as same become due and payable and the City agreed in the Original Lease to exercise its power of taxation to the extent necessary to make such Basic Lease Payments; and WHEREAS, to finance the remaining portion of the improvements and undertakings set forth in the Phase I Capital Improvement Program, the Authority authorized pursuant to that certain bond resolution adopted February 5, 1990, as supplemented and amended by resolutions adopted March 22, 1990 and April 2, 1990 (the "1990 Resolution") the issuance of, and actually issued and delivered, $8,690,000 aggregate principal amount of its Revenue Bonds, Series 1990, dated February 1, 1990 (the "Series 1990 Bonds") in the form of fully registered bonds without coupons, transferable to subsequent owners as therein provided, bearing interest from date at the rate per annum set forth below opposite each principal maturity, all interest payable August 1, 1990 and semiannually thereafter on the 1st day of February and August in each year, and the principal maturing on the 1st day of February, in the years and amounts as follows: .... 133202.1 -3- ~ Year Amount Rate Year Amount Rate 1992 $ 30,000 6.10% 2001 $ 255,000 7.10 % 1993 95,000 6.25 2002 275,000 7.10 1994 165,000 6.35 2003 290,000 7.10 ... 1995 175,000 6.45 2004 315,000 7.10 1996 185,000 6.55 2005 335,000 7.15 1997 195,000 6.65 2006 360,000 7.20 1998 210,000 6.75 2007 385,000 7.20 1999 225,000 6.85 2010 1,320,000 7.25 2000 240,000 6.95 2016 3,635,000 7.375 of which Series 1990 Bonds there is now outstanding $2,050,000 taking into account the refunding of the Refunded Series 1990 Bonds hereinafter described (the "Outstanding Series 1990 Bonds") and said outstanding Series 1990 Bonds, together with the outstanding Series 1989 Bonds, had as security for the paYment thereof and interest thereon certain revenues of the Authority to be received pursuant to the 1990 Lease (hereinafter defined); and WHEREAB, as provided in the Original Resolution, the Original Lease was amended to reflect the issuance of the Series 1990 Bonds and the change in the Basic Lease PaYments necessitated thereby, all as provided in that certain Amended and Restated Lease Contract, dated as of September 1, 1989, between the Authority and the City (the "1990 Lease"); and ... WHEREAS, the Authority received a recommendation from Lex Jolley & Co., Inc., Atlanta, Georgia, now known as Bank South Securities Corporation, Atlanta, Georgia ("Bank South Securities") , that, due to present market conditions, it was advisable, feasible and in the best interest of the Authority that the outstanding Series 1989 Bonds maturing in the years 2007 through 2016, inclusive, in the aggregate principal amount of $4,025,000 (the "Refunded Series 1989 Bonds") and the outstanding Series 1990 Bonds maturing in the years 2004 through 2016, inclusive, in the aggregate principal amount of $6,350,000 (the "Refunded Series 1990 Bonds" and, together with the Refunded Series 1989 Bonds, the "Refunded Bonds") be refunded at that time in order to effect a savings in the debt service requirements; and the Authori ty determined, after its own independent study and investigation, that it was in its best interest to refund the Refunded Bonds as aforesaid; and WHEREAB, to finance the refunding of the Refunded Bonds the Authority authorized pursuant to that certain bond resolution adopted March 11, 1993 (the "1993 Resolution") the issuance of, and actually issued and delivered, $11,985,000 aggregate principal amount of its Revenue Refunding Bonds, Series 1993, dated March 1, 1993 (the "Series 1993 Bonds") in the form of fully registered bonds without coupons, transferable to subsequent owners as therein provided, in the denomination of $5,000 or any integral multiple 133202.1 -4- -- thereof, numbered from R-1 upwards, bearing interest from date at the rate per annum set forth opposite each principal maturity, all interest payable August 1, 1993 and semiannually thereafter on the 1st days of February and August in each year, and the principal maturing on the 1st day of February, in the years and amounts, as .. follows: Year Amount Rate Year Amount Rate 1994 $ 75,000 2.70% 2003 $ 105,000 4.80% 1995 75,000 3.25 2004 420,000 4.90 1996 80,000 3.70 2005 435,000 5.00 1997 80,000 3.90 2006 460,000 5.00 1998 85,000 4.05 2007 765,000 5.10 1999 85,000 4.30 2008 800,000 5.25 2000 90,000 4.45 2012 3,680,000 5.50 2001 95,000 4.60 2016 4,555,000 5.50 2002 100,000 4.70 of which Series 1993 Bonds there is now outstanding $11,910,000 and said series 1993 Bonds, together with the outstanding Series 1989 Bonds and the outstanding Series 1990 Bonds (collectively, the "Prior Bonds"), have as security for the paYment thereof and interest thereon certain revenues of the Authority to be received pursuant to the 1993 Lease (hereinafter defined); and ... WHEREAS, as provided in the original Resolution, as ratified, reaffirmed, broadened and extended by the 1990 Resolution and the 1993 Resolution, the 1990 Lease was amended to reflect the issuance of the Series 1993 Bonds and the change in the Basic Lease PaYments necessitated thereby, all as provided in that certain Second Amended and Restated Lease Contract, dated as of September 1, 1989, between the Authority and the City (the "1993 Lease"); and WHEREAS, the City and the Authority, after an investigation and study of the current capital needs and the desirability for the continuing redevelopment of the downtown Smyrna area, have determined that there is an urgent need for certain capital improvements to be made consisting of a new expanded and improved police station and new expanded jail facility and other structures, equipment or facilities useful or desirable in connection therewith to be made; and WHEREAS, the City and the Authority have determined that such undertaking can be accompl ished, in accordance wi th, or substantially in accordance with, the report dated November, 1994, prepared by Sizemore Floyd Architects, Atlanta, Georgia, said report being hereinafter sometimes referred to as the "Phase II capital Improvement Program"; and WHEREAS, to finance the undertaking now contemplated the Authority proposes to issue not to exceed $7,650,000 aggregate 133202.1 -5- -- . principal amount of its Revenue Bonds, Series 1994 (the "Series 1994 Bonds") hereinafter authorized to be issued and it is contemplated that said bonds will be sold in the near future and in awarding the Series 1994 Bonds to the purchaser thereof, the Authority will adopt a resolution supplementing this resolution and .. said supplemental resolution will set forth, among other things, the interest rate or rates that the bonds hereinafter authorized to be issued will bear, will specify the principal amount to mature in each year and the maturities of said bonds which will be designated as term bonds and subject to mandatory redemption, will designate the Bond Registrar and Paying Agent for said bonds, will designate the representative of the original purchaser of said bonds and will provide for the actual issuance and delivery of the bonds to the purchaser upon paYment of the agreed purchase price therefor by said purchaser; and WHEREAS, it was provided in section 17 of the 1993 Resolution (ratifying, broadening and extending Article V, section 4 of the Original Resolution and Section 11 of the 1990 Resolution) that additional revenue bonds or obligations could be issued, from time to time, ranking as to lien on the Basic Lease PaYments on a parity with the outstanding Series 1989 Bonds, the Outstanding Series 1990 Bonds and the Series 1993 Bonds, upon meeting certain terms and conditions, which are, in part, as follows: .. (a) None of the Bonds or any Additional Bonds are in default as to principal and interest; the Authority is in compliance with the terms and conditions of the Prior Resolutions, as same have been ratified, reaffirmed, broadened and extended by this resolution; and the City is in compliance with the Lease. (b) The paYments covenanted to be made into the sinking Fund must be currently being made in the full amount as required. (c) The Lease shall have been amended to reflect the issuance of Additional Bonds and the increase in the Basic Lease PaYments necessitated thereby. (d) The Authority shall pass proper proceedings reciting that all of the above requirements have been met, shall authorize the issuance of the Additional Bonds and shall provide in such proceedings, among others, the date such Additional Bonds shall bear, the rate or rates of interest, maturi ty dates and redemption provisions, as well as the provisions for registration. The interest on the Additional Bonds of any such issue shall fall due on February 1 and August 1 of each year, and the principal shall mature in installments on February 1, but, as to principal, not necessarily in each year or in equal installments. The proceedings for such Additional Bonds may contain additional 133202.1 -6- .... .. covenants with respect to the maintenance and operation of the Leased Facilities and additional restrictions on the issuance of Additional Bonds, which covenants and restrictions shall, so long as, but only so long as, such Additional Bonds remain outstanding be for the benefit of any other Bonds secured by the Resolution. Any such proceeding or proceedings shall ratify and reaffirm, by reference, all of the applicable terms, conditions and provisions of the Resolution. ; and WHEREAS, as required by the Original Resolution, as ratified, reaffirmed, broadened and extended by the 1990 Resolution and the 1993 Resolution (collectively, the "Prior Resolutions") and this 1994 Resolution, the Authority will execute and deliver a Third Amended and Restated Lease Contract, dated as of September 1, 1989, with the City (the "Lease") which will reflect the issuance of the proposed Series 1994 Bonds and the increase in the Basic Lease PaYments necessitated thereby; and .. WHEREAS, prior to the actual issuance and delivery of the Series 1994 Bonds hereinafter authorized to be issued, the Authority will enter into a contract with a bank located in Atlanta, Georgia, pursuant to which it will agree to act as Paying Agent and as Bond Registrar for the Series 1994 Bonds hereinafter authorized to be issued and to perform various functions with respect to the Bonds, including, but not limited to, the authentication of the Series 1994 Bonds by the manual signature of a duly authorized signatory of said Bank, as Bond Registrar, the registration, transfer, exchange and related mechanical and clerical functions, as well as the preparation, signing and issuance of checks or drafts in paYment of the principal of and interest on the Series 1994 Bonds as same become due and payable either at maturity or by proceedings for mandatory redemption; and WHEREAS, in order to provide for future additions, extensions and improvements to the Leased Facilities or refunding of bonds issued pursuant to the Original Resolution as ratified, reaffirmed, broadened and extended, provision should hereinafter be made for the issuance of additional revenue bonds for such purposes, such bonds to stand on a parity with and be of equal dignity as to lien on the revenues of the Authority with the Prior Bonds and the Series 1994 Bonds hereinafter authorized to be issued; and WHEREAS, the Prior Bonds are the only revenue obligations of the Authority now outstanding having as security for the paYment thereof certain revenues of the Authority to be received pursuant to the 1993 Lease, and the Authority has been and is now complying in all respects with the terms, provisions and covenants of the Prior Resolutions and is maintaining the respective special funds therein created in the full amount as required; and 133202.1 -7- .. WHEREAS, the terms, conditions, provisions and covenants of the Prior Resolutions will be brought forward, ratified, reaffirmed, broadened and extended by this resolution and made applicable to the Series 1994 Bonds as though the Series 1994 Bonds had been issued simultaneously under authority of the Prior WI' Resolutions and the Authority will continue to comply in all respects with the applicable terms, covenants and provisions of the Prior Resolutions so long as the Prior Bonds, the Series 1994 Bonds and any parity bonds therewith are outstanding and unpaid or until provision has been duly made for the paYment thereof; and NOW, THEREFORE, BE IT RESOLVED, by the Downtown Smyrna Development Authority, and it is hereby resolved by authority of the same, as follows: The Authority shall enter into that certain Third Amended and Restated Lease Contract, dated as of September 1, 1989, which Lease, having been read and carefully considered, be and the same is hereby approved and the Chairman be and is hereby authorized and directed to execute the Lease for and on behalf of the Authority and the Secretary and Treasurer be and is hereby authorized and directed to attest same and impress the official seal of the Authority thereon and the Lease shall be in substantially the form which is on file and of record in the Minute Book of the Authority kept in the office of the Secretary and Treasurer of the Authority, and by this reference thereto, the Lease is incorporated herein and made a part hereof, subject to such minor changes, insertions or omissions as may be required to accomplish the undertaking contemplated by the parties thereto and as same may be approved by .. the Chairman and the execution of the Lease by the officers of the Authority as herein authorized shall be conclusive evidence of such approval. BE IT FURTHER RESOLVED by the authority aforesaid, and it is hereby resolved by the authority of the same, that for the purpose of this resolution the definitions set forth in the Prior Resolutions shall be and are hereby supplemented and amended effective as of the date of issuance and delivery of the Series 1994 Bonds herein authorized to be issued, as follows: "Addi tional Bonds" shall mean any revenue bonds of the Authority ranking on a parity with the Prior Bonds and the Series 1994 Bonds which may hereafter be issued pursuant to the Resolution. "Basic Lease Payment" means the aggregate amount equal to the principal of and interest on the Bonds coming due on the next succeeding February 1 and the interest on the Bonds coming due on the next succeeding August 1 in each year; provided, however, the Lessee shall receive a credit against any Basic Lease PaYment to the extent moneys are on deposit in the Sinking Fund and not previously credited to a Basic Lease PaYment. In addition to the 133202.1 -8- .. foregoing, each Basic Lease Payment shall include the charges as billed specified in subparagraphs (e), (f) and (g), of Section 3, Article V of the Original Resolution, as ratified, reaffirmed, broadened and extended in Section 10 of the 1990 Resolution, Section 14 of the 1993 Resolution and Section 14 of the 1994 ~ Resolution, and any deficit in any preceding Basic Lease Payment. "Bonds" shall mean any revenue bonds authorized by and pursuant to the Resolution, including the Prior Bonds, the 1994 Bonds and any Additional Bonds of the Authority pursuant to the Resolution. issued Series issued "Lease" or "Contract" means the Third Amended and Restated Lease Contract, dated as of September 1, 1989, by and between the Authority and the City, as same from time to time may be amended or restated. "Leased Facilities" means the facilities and real property financed with the proceeds of the Series 1989 Bonds, the Series 1990 Bonds, the Series 1994 Bonds and any Additional Bonds issued by the Authority, without regard to whether or not the entire cost of said facilities or property was financed with proceeds of such Bonds. "1994 Resolution" means issuance of the Series 1994 resolution of the Authority to the Series 1994 Bonds. this resolution authorizing the Bonds, and as supplemented by a be adopted prior to the issuance of 'l!i': .. "outstanding Series 1989 Bonds" means the Series 1989 Bonds maturing in the years 1995 through 2006, inclusive, in the aggregate principal amount of $2,235,000. "outstanding Series 1990 Bonds" means the Series 1990 Bonds maturing in the years 1995 through 2003, inclusive, in the aggregate principal amount of $2,050,000. "Phase I capital Improvement program" means the Smyrna Master Plan, Phase I: Community Center and Library Project No. 88190, dated September, 1989, prepared by the Sizemore Floyd Architects, Atlanta, Georgia, for the Authority and the city. "Phase II capital Improvement Program" shall mean the report dated November, 1994, prepared by Sizemore Floyd Architects, Atlanta, Georgia, for the Lessee and the Authority. "Prior Bonds" means collectively the Outstanding Series 1989 Bonds, the Outstanding Series 1990 Bonds and the Series 1993 Bonds. "Prior Resolutions" means COllectively the Original Resolution, the 1990 Resolution and the 1993 Resolution. ... 133202.1 -9- .., ..... .. "Resolution" means the Original Resolution, as ratified, reaffirmed, broadened and extended by the 1990 Resolution, the 1993 Resolution and the 1994 Resolution, and as same may hereafter be supplemented from time to time. "Series 1994 Bonds" means not to exceed $7,650,000 aggregate principal amount of the Authority's Revenue Bonds, Series 1994 authorized to be issued pursuant to the Resolution, including specifically Article II of this 1994 Resolution. "Sinking Fund" shall mean the Downtown Smyrna Development Authority Sinking Fund created in Article V, section 1 of the Original Resolution, as ratified, reaffirmed, broadened and extended by the 1990 Resolution, 1993 Resolution and 1994 Resolution. All of the other terms defined in of the Prior Resolutions, unless the context shall clearly indicate another or different meaning or intent, shall be construed or used and are intended to have the same meaning as set forth therein and same are ratified and reaffirmed and shall apply to the Series 1994 Bonds as if set forth herein verbatim. BE IT FURTHER RESOLVED by the Authority aforesaid, and it is hereby resolved by authority of same, as follows: Section 1. Authorization. All of the applicable terms, provisions and conditions contained in Article V, section 4 of the Original Resolution, section 11 of the 1990 Resolution and section 17 of the 1993 Resolution having been met and complied with and under the authority of the Constitution of the State of Georgia, the Revenue Bond Law and the Authority Act, there be, and there is hereby, authorized to be, issued, pursuant to and in conformity with the Prior Resolutions, revenue bonds in the aggregate principal amount of not to exceed $7,650,000 for the purpose of providing funds to finance, in whole or in part, the cost of those certain capital improvements consisting of a new expanded and improved police station and new expanded jail facility and other structures, equipment or facilities useful or desirable in connection therewith and acquiring the necessary property therefor, both real and personal, and to pay all expenses necessary to accomplish the foregoing, in accordance on substantial in accordance with the Phase II Capital Improvement Program as hereinafter provided. Such revenue bonds shall be payable solely from the Sinking Fund. The revenue bonds shall be designated "Downtown Smyrna Development Authority Revenue Bonds, Series 1994," shall be dated December 1, 1994, shall be in the form of fully registered bonds without coupons, shall be transferable to subsequent owners as hereinafter provided, shall be in the denomination of $5,000 or any integral multiple thereof, shall be numbered from R-l upwards, 133202.1 -10- ."", ~ ... shall bear interest from date at such rate or rates not exceeding 7 1/4 percent in any year, all interest payable August 1, 1995 and semiannually thereafter on the 1st days of February and August in each year, and the principal shall mature (or be subj ect to mandatory sinking fund redemption) on the 1st day of February, in each of the years 1997 through 2021, inclusive, and in such principal amounts that the maturing annual debt service in any calendar year will not exceed $1,826,989. In addition, the debt service on the Series 1994 Bonds and the Prior Bonds in any calendar year shall not exceed $1,826,989. The principal of the Series 1994 Bonds shall be payable to the registered owner thereof on the dates specified, unless redeemed prior thereto as hereinafter provided, upon presentation and surrender thereof at the principal corporate trust office of the Paying Agent, and paYments of interest on the Series 1994 Bonds shall be made by check or draft payable to the registered owner as shown on the bond registration book of the Authority kept by the Bond Registrar at the close of business on the fifteenth day of the calendar month next preceding each February 1 and August 1 interest paYment date and such interest 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 1994 Bonds shall be payable in lawful money of the United States of America. section 2. Execution: Form of Series 1994 Bonds. The Series 1994 Bonds shall be executed on behalf of the Authority by use of the facsimile signature of the Chairman and attested by the facsimile signature of the Secretary and Treasurer of the Authority and a facsimile of the official seal of the Authority shall be imprinted thereon and the Series 1994 Bonds shall be authenticated by the manual signature of a duly authorized officer of the Bond Registrar. The Secretary and Treasurer be, and is hereby, authorized to certify by the use of her 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, Bond Counsel, which opinion will be printed on the Series 1994 Bonds. The validation certificate to be printed on the Series 1994 Bonds shall be executed by use of the facsimile signature of the Clerk of the Superior Court of Cobb County and a facsimile of the official seal of such Court shall be imprinted thereon. In case any officer whose signature shall appear on the Series 1994 Bonds shall cease to be such officer before delivery of the Series 1994 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 1994 Bonds, the certificate of authentication and registration, form of assignment and the certificate of validation to be endorsed upon the Series 1994 Bonds shall be in substantially the following forms, with such variations, omissions and insertions as are required or permitted by this resolution: 133202.1 -11- No. R- $ .., UNITED STATES OP AMERICA STATB OP GEORGIA DOWNTOWB SMYRNA DEVELOPMENT AUTHORITY REVENUE BOND SERIES 1994 BOND DATE: December 1, 1994 MATURITY DATB: INTEREST RATE: CUSIP: POR VALUE RECEIVED, Downtown Smyrna Development Authority (the "Authority"), a body corporate and politic created by the Downtown Smyrna Development Authority Act (Georgia Laws 1989, p. 4382 et seq., the "Authority Act") and as such deemed to be a political subdivision of the State of Georgia and a public corporation thereof, hereby promises to pay solely from the special fund provided therefor, as hereinafter set forth, to 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 , Atlanta, Georgia, Paying Agent and Bond Registrar, and to pay to the registered owner ... hereof solely from the special fund interest on the principal amount from date hereof or from the most recent interest payment date to which interest has been paid, at the rate per annum specified above, on August 1, 1995 and semiannually thereafter on the 1st days of February and August in each year (each an "Interest Payment Date"), 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 Authority 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 such registered owner at the address shown on the bond registration book. This bond is one of a duly authorized issue of Downtown Smyrna Development Authority Revenue Bonds, Series 1994, in the aggregate principal amount of $ , of like tenor, except as to numbers, denominations, interest rates, dates of maturi ty and redemption provisions (collectively, the "Series 1994 Bonds") issued for the purpose of providing funds to finance, in whole or in part, the cost of those certain capital improvements consisting of a new expanded and improved police station and new expanded jail facility and other structures, equipment or facilities useful or 133202.1 -12- .", -- .. .. desirable in connection therewith and acqu1r1ng the necessary property therefor, both real and personal, and to pay all expenses necessary to accomplish the overall undertaking now contemplated. The Series 1994 Bonds are issued under authority of the Constitution of the state of Georgia, the Revenue Bond Law (Title 36, Chapter 82, Article 3 of the Official Code of Georgia Annotated, as amended) and under the provisions of Georgia Laws 1989, p. 4382 et seq. known as the "Downtown Smyrna Development Authority Act" (the "Authority Act") and were duly authorized by a resolution of the Authority adopted on September 5, 1989, as supplemented by a resolution adopted November 8, 1989 (the "Original ReSOlution"), by a resolution adopted February 5, 1990, as supplemented and amended by resolutions adopted March 22, 1990 and April 2, 1990 (the "1990 Resolution"), by a resolution adopted March 11, 1993 (the "1993 Resolution") and by a resolution adopted November 22, 1994, as supplemented December __' 1994 (the "1994 Resolution" and, together with the Original Resolution, the 1990 Resolution and the 1993 Resolution, called collectively the "ReSOlution"). The Series 1994 Bonds rank on a parity as to the lien on the revenues of the Authority derived from that certain Third Amended and Restated Lease Contract, dated as of September 1, 1989 (the "Lease") by and between the Authority and the City of Smyrna, with the Authority's Revenue Bonds, Series 1989, heretofore issued pursuant to the Original Resolution and outstanding in the aggregate principal amount of $2,235,000 (the "Series 1989 Bonds") , the Authority's Revenue Bonds, Series 1990, heretofore issued pursuant to the Original Resolution, as ratified, reaffirmed, broadened and extended by the 1990 Resolution and outstanding in the aggregate principal amount of $2,050,000 (the "Series 1990 Bonds") and the Authority's Revenue Refunding Bonds, Series 1993 heretofore issued pursuant to the Original Resolution, as ratified, reaffirmed, broadened and extended by the 1990 Resolution and the 1993 Resolution and outstanding in the aggregate principal amount of $11,910,000 (the "Series 1993 Bonds"). In addition to the Series 1989 Bonds, the Series 1990 Bonds, the Series 1993 Bonds and the Series 1994 Bonds (collectively the "Bonds"), the Authority may issue, under certain terms and condi tions as provided in the Resolution, additional revenue bonds or obligations and if issued such additional bonds or obligations will rank on a parity as to lien on the revenues of the Authority derived under the Lease with the lien securing the paYment of the Bonds. Reference to the Resolution 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 Bonds, the nature and extent of the security therefor, a statement of rights, duties and obligations of the Authority, the rights of the owners of the Bonds, and the terms and provisions under which additional revenue bonds or obligations 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 133202.1 -13- ~ and such continued terms and prov~s~ons 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 Resolution until this bond shall have been authenticated and registered upon the bond registration book of the Authority kept for that purpose by the Bond Registrar, which authentication and registration shall be evidenced by the execution by the manual signature of a duly authorized officer of the Bond Registrar of the certificate hereon. IN WITNESS WHEREOF, Downtown Smyrna Development Authority has caused this bond to be executed by use of the facsimile signature of its Chairman and a facsimile of its official seal to be imprinted hereon and attested by use of the facsimile signature of its Secretary and Treasurer, as of the 1st day of December, 1994. DOWNTOWN SMYRNA DEVELOPMENT AUTHORITY Attest: By: Chairman Secretary and Treasurer (8 E A L) ... 133202.1 -14- .., DATE OF AUTHENTICATION AND REGISTRATION: CERTIFICATE OF AUTHENTICATION AND REGISTRATION ~ This bond is one of the Series 1994 Bonds described hereinabove. , as Bond Registrar By: Authorized Officer * * * * * VALIDATION CERTIFICATE STATE OF GEORGIA ) ) COUNTY OF COBB ) The undersigned Clerk of the Superior Court of Cobb County, State of Georgia, HEREBY CERTIFIES that this bond was validated and confirmed by jUdgment of the Superior Court of Cobb County, Georgia, on the day of December, 1994, 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. ... WITNESS my facsimile signature and seal of the Superior Court of Cobb County, Georgia. Clerk, Superior Court, Cobb County, Georgia (S E A L) 133202.1 -15- .. [THE FOLLOWING SHALL BE PRINTED ON THE BACK OF EACH SERIES 1994 BOND. ] .... 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 his 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 1994 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 1994 Resolution. .... The Authority and City of Smyrna (the "City") have entered into the Lease, under which the Authority has leased the Leased Facilities (as defined in the Lease) to the City for a term extending through February 2, 2021 or if at said time and on said date all of the Bonds and any additional bonds issued on a parity therewith have not been paid in full, then on such date as such payment shall have been made, but in no event in excess of 50 years from the date thereof, and in consideration thereof the City has obligated itself to make Basic Lease Payments (as defined in the Lease) to the Authority in amounts sufficient to enable the Authority to pay the principal of and interest on the Bonds and any additional bonds or obligations hereafter issued by the Authority on a parity therewith as same become due and payable. Under the terms of the Lease and the Resolution, the City and the Authority have agreed that the Basic Lease Payments shall be paid by the City directly to the Sinking Fund Custodian designated in the Resolution for the account of the Authority and deposited into the special fund created in the Original Resolution and designated "Downtown Smyrna Development Authority Sinking Fund." The revenues of the Authority representing the Basic Lease Payments from the City as provided in said Lease have been pledged under the Resolution to the payment of the principal of and interest on the Bonds and any parity bonds hereafter issued pursuant to the Resolution. This bond shall not be deemed to constitute a debt of the State of Georgia or City, nor a pledge of the faith and credit of said State or City, nor shall the State or 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 133202.1 -16- ..." ... payment hereof, and is payable solely from the special fund provided therefor from the revenues of the Authority derived under the Lease. No owner of this bond shall ever have the right to enforce payment hereof against any property of the Authority, nor shall this bond constitute a charge, lien or encumbrance, legal or equitable, upon any property of the Authority. The issuance of this bond shall not directly, indirectly or contingently obligate said state or said City to levy or to pledge any form of taxation whatever therefor or to make any appropriation for its payment except for the obligation of the City to make the Basic Lease Payments to the Authority. The series 1994 Bonds may be redeemed prior to their respective maturities, either in whole or in part, at the option of the Authority, on any Interest Payment Date in any year, not earlier than February 1, 2015, from any moneys which may be made available for such purpose as provided in the 1994 Resolution. Such redemption may be made upon payment of the principal amount thereof and accrued interest thereon to date of redemption, together with a premium of 2 percent of such principal amount if redeemed on or prior to August 1, 2015; 1 percent of such principal amount if redeemed thereafter and on or prior to August 1, 2016, and at par without a premium if redeemed thereafter and before maturity. If such bonds are called in part, then any such bonds so called for redemption shall be called in the inverse order of their maturities and if less than a full maturity by lot or in such other manner as may be designated by the Bond Registrar. [The Series 1994 Bonds maturing in the year ____ shall be __ subject to mandatory redemption prior to maturity on February 1, ____, and on each succeeding February 1 to and including February 1, ____, in part, by lot in such manner as may be designated by the Bond Registrar, at par plus accrued interest to the redemption date, in the following principal amounts on February 1, in the years as follows: Year Amount $ Additionally, the Series 1994 Bonds maturing in the year ____ shall be subj ect to mandatory redemption prior to maturity on February 1, ____, and on each succeeding February 1 to and including February 1, ____, in part, by lot in such manner as may be designated by the Bond Registrar, at par plus accrued interest to the redemption date, in the following principal amounts on February 1, in the years as follows: 133202.1 -17- .,.." Year $ Amount] ~ Notice designating the Series 1994 Bonds (or the portion of the principal amount of the Series 1994 Bonds in multiples of $5,000) to be acquired by redemption, as aforesaid, shall be mailed, postage prepaid, not less than 30 days prior to the redemption date, to all registered owners of the Series 1994 Bonds to be redeemed in whole or in part at the addresses which appear in the bond registration book as of the date of such notice, but failure so to mail any such notice shall not affect the validity of the proceedings for such redemption or cause the interest to accrue on the principal amount of the Series 1994 Bonds so designated for redemption after the redemption date. To the extent and in the manner permitted by the Resolution, modifications, alterations, amendments, additions and recisions of the provisions of the Resolution, or of any resolution supplemental thereto or of the Series 1994 Bonds, may be made by the Authority with the consent of the owners of at least 65 percent of the principal amount of the obligations then outstanding under the Resolution, 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 by ... the Resolution, the Revenue Bond Law and any amendments thereto and the Authority Act. 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 Authority of amounts sufficient to pay the principal of and the interest on all of the Bonds as same become due and payable and that such revenues are irrevocably allocated and pledged to the paYment thereof and the interest thereon. 133202.1 -18- ""'" .-. ..... .... ASSIGNMENT FOR VALUE RECEIVED the undersigned hereby sells, assigns and transfers unto please print or typewrite name and address [Insert Tax Identification or Social Security Number] including postal zip code of assignee the within bond and all rights thereunder, appointing this bond on the bond the Bond Registrar, premises. hereby constituting and attorney to transfer registration books kept for such purpose by with full power of substitution in the DATED Signature Guaranteed: 133202.1 Notice: The signature to this assignment must correspond with the the name as it appears upon the face of the within Bond in every particular, without alteration or enlargement or any change whatever. -19- ,. ... ..... Section 3. Reauired Authentication: Proof of OwnershiD. Only those Series 1994 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 the Bond Registrar, shall be entitled to any benefit or security under this resolution and such certificate upon any of such bonds when duly executed shall be conclusive evidence that such bond has been duly authenticated, registered and delivered. It shall not be necessary that the same authorized signatory of the Bond Registrar sign the certificate of authentication and registration on all of the Series 1994 Bonds that may be issued hereunder at anyone time. The person in whose name any Series 1994 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 bond, including redemption premium, if any, and the interest thereon to the extent of the sums so paid. section 4. Bond Reaistrar: Transfer and Exchanae. The Bond Registrar shall keep the bond registration book of the Authority for the registration of the Series 1994 Bonds and for the registration of transfers of the Series 1994 Bonds as herein provided. The transfer of any Series 1994 Bond shall be registered upon the bond registration book upon the surrender and presentation of the Series 1994 Bond to the Bond Registrar duly endorsed for transfer or accompanied by an assignment duly executed by the registered owner or attorney duly authorized 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 1994 Bond or Series 1994 Bonds so surrendered, a new Series 1994 Bond or Series 1994 Bonds registered in the name of the transferee, of any denomination or denominations authorized by this resolution, and in an aggregate principal amount equal to the aggregate principal amount of the series 1994 Bonds so surrendered and of the same maturity. Any Series 1994 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 1994 Bonds of the same maturity equal to the principal amount of the Series 1994 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 1994 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 Series 1994 Bonds under this resolution. 133202.1 -20- "- Section 5. Lost. Destroved. Mutilated Bonds. If any of the Series 1994 Bonds shall become mutilated, the Bond Registrar in its discretion and at the expense of the owner of such bond shall authenticate and deliver a new bond of like tenor registered in the name of the owner in exchange and substitution for such mutilated bond. If any 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 Authority and if such evidence shall be satisfactory and indemnity of a character and in an amount satisfactory to the Authority shall be given, then the Authority shall at the expense of the owner cause a new 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 6. Blank Bonds. The Authori ty shall make all necessary and proper provisions for the transfer and exchange of the Series 1994 Bonds by the Bond Registrar and the Authority shall deliver or cause to be delivered to the Bond Registrar a sufficient quantity of blank Series 1994 Bonds duly executed on behalf of the Authority, 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 1994 Bonds at the earliest practicable time in accordance with the provisions of this resolution. All Series 1994 Bonds surrendered in any such exchange or registration of transfer shall be forthwith cancelled by the Bond Registrar and a record thereof duly entered in the permanent records pertaining to the Series 1994 Bonds maintained by the Bond Registrar. .. section 7. No Preference of Priority. The Series 1994 Bonds shall stand on a parity and shall be of equal dignity with the Prior Bonds and shall be secured by the lien created on the revenues of the Authority pursuant to the Prior Resolutions as the same are ratified, reaffirmed, broadened and extended by this resolution, just as if said Prior Bonds and Series 1994 Bonds had been issued simultaneously under the same resolution. Section 8. RedemDtion of Series 1994 Bonds. The Series 1994 Bonds may be redeemed at the option of the Authority in whole or in part on any interest payment date, in any year not earlier than February 1, 2015, from any moneys which may be available for such purpose and deposited with the Paying Agent on or before the date fixed for redemption. The optional redemption of Series 1994 Bonds shall be made by the payment of the principal amount of the Series 1994 Bonds to be redeemed and accrued interest thereon to date of redemption, together with a premium of 2 percent of such principal amount if redeemed on or prior to August 1, 2015; 1 percent of such principal amount if redeemed thereafter and on or prior to August 1, 2016; and at par without a premium if redeemed thereafter and before maturity. If less than a full maturity of the Series 1994 Bonds are called for redemption, the particular series 1994 Bonds 133202.1 -21- """ .... ... ..,., of such maturity shall be selected by lot or in such other manner as may be designated by the Bond Registrar. Section 9. Procedure and Notice of Redem~tion. If less than all of the Series 1994 Bonds of a single maturity are to be redeemed, the Bond Registrar shall treat any bond of such maturity outstanding in a denomination of greater than $5,000 principal amount as two or more separate Series 1994 Bonds in the denomination of $5,000 each and shall assign separate numbers to each for the purpose of determining the Series 1994 Bonds or the portion of such Series 1994 Bonds in a denomination greater than $5,000 to be redeemed by lot. With respect to any Series 1994 Bond called for partial redemption, the registered owner thereof shall surrender such bond to the Bond Registrar in exchange for one or more Series 1994 Bonds in the denomination of $5,000 principal amount or any integral multiple thereof in the aggregate equal to the unredeemed principal amount of such bond so surrendered. The Bond Registrar shall furnish the Authority on or before the forty- fifth day next preceding each optional redemption date if such option is exercised with its certificate setting forth the Series 1994 Bonds that have been selected for optional redemption, either in whole or in part on such date. Not less than 30 days before any date upon which any such redemption is to be made a notice of redemption signed by a duly authorized signatory of the Bond Registrar on behalf of the Authority designating the Series 1994 Bonds to be redeemed (in whole or in part) shall be mailed, postage prepaid, to all registered owners of the Series 1994 Bonds to be redeemed (in whole or in part) at addresses which appear upon the bond registration book as of the date of giving such notice. It is expressly provided, however, that the failure so to mail any such notice of the optional redemption of the Series 1994 Bonds shall not affect the validity of the proceedings for such redemption or cause the interest to continue to accrue on the principal amount of the Series 1994 Bonds so designated for redemption after the redemption date. Section 10. Purchase in ODen Market. Nothing herein contained shall be construed to limit the right of the Authority to purchase with any excess moneys in the Sinking Fund (i.e., moneys not needed in the then current Sinking Fund Year to pay principal of and interest on the Bonds or credited against a Basic Lease Payment) and for sinking fund purposes, the Series 1994 Bonds in the open market at a price not exceeding the callable price. Any such Series 1994 Bonds so purchased cannot be reissued and shall be cancelled. section 11. Effect of Call for RedemDtion. Notice having been given in the manner and under the conditions hereinabove provided, the Series 1994 Bonds so designated for redemption shall, on the redemption date designated in such notice, become and be due and payable at the redemption price hereinabove specified, and from and after the date of redemption so designated, unless default 133202.1 -22- shall be made in the payment of the Series 1994 Bonds so designated for redemption, interest on the Series 1994 Bonds so designated for redemption shall cease to accrue after the redemption date. ,. Section 12. ADDlication of Series 1994 Bond Proceeds. From the proceeds derived from the sale of the Series 1994 Bonds, including accrued interest to date of delivery, the following payments shall be made, simultaneously with the issuance and delivery of the Series 1994 Bonds, to the extent and in the manner herein set forth: (a) The accrued interest received on the Series 1994 Bonds shall be deposited into the Sinking Fund to be used and applied toward the payment of the interest on the Series 1994 Bonds coming due on August 1, 1995. (b) Such amount of the proceeds as may be necessary shall be retained by the original purchaser of the series 1994 Bonds and used and applied by it at the direction of the Authority to the payment of costs and expenses of the undertaking herein contemplated and any surplus remaining after the payment of such expenses shall be deposited into the Project Fund. (c) The balance of the proceeds so received shall be deposited into the Project Fund described in the Original Resolution. The moneys so deposited into the Project Fund shall be held, .... maintained, invested and disbursed as provided in Article IV, Sections 2 through 4, inclusive, of the Original Resolution, and in accordance with the terms and conditions set forth in the Lease, and said terms and conditions of the Original Resolution are hereby declared applicable to the Series 1994 Bonds and for the purpose of making same applicable, the Authority does hereby reaffirm and adopt verbatim herein, except that said Article is broadened and extended to provide for the improvements in accordance or Substantially in accordance with the Phase II Capital Improvement Program and otherwise as required by this resolution and the Lease. Section 13. sinkina Fund. The Authority covenants that it will continue to maintain the special fund designated as "Downtown Smyrna Development Authority Sinking Fund" created in Section 1 of Article V of the Original Resolution. The Sinking Fund shall be kept as a separate trust account with the Sinking Fund Custodian separate from other deposits of the Authority. Section 14. Basic Lease Payments. All Basic Lease PaYments shall be deposited into the Sinking Fund for the purpose of paying the principal of and interest on the Bonds as same become due and payable, either at maturity or by proceedings for mandatory redemption, and the other charges permitted to be paid pursuant to 133202.1 -23- y Section 3 of Article V of said Original Resolution, as same is ratified, reaffirmed, broadened and extended by Section 10 of the 1990 Resolution, Section 14 of the 1993 Resolution and by this resolution. -., Section 15. Pledae of Revenues. As provided in the Prior Resolutions, the Basic Lease PaYments received by the Authority immediately become subject to a lien to secure the paYment by the Authority of the debt service on the Bonds and all amounts therein and herein agreed to be paid and the Authority hereby ratifies and reaffirms the pledge of such revenues and hereby covenants and agrees that the revenues received by it shall in like manner be and are hereby pledged to secure the paYment by the Authority of the principal of, redemption premium (if any) and interest on the Bonds and the amounts herein agreed to be paid and the lien of this pledge shall be valid and binding against it and against all parties having claims of any kind against it, whether such claims shall have arisen in contract, tort or otherwise and irrespective of whether or not such parties have notice hereof. Section 16. Additional Bonds. The Authority covenants and agrees that it will not exercise the privilege provided in Article V, Section 4 of the Original ReSOlution, Section 11 of the 1990 Resolution or Section 17 of the 1993 Resolution of issuing Additional Bonds ranking as to lien on the Basic Lease PaYments or the Lease on a parity with the Bonds unless or until all of the following conditions are met: .., (a) None of the Bonds or any Additional Bonds are in default as to principal and interest; the Authority is in compliance with the terms and conditions of the Prior ReSOlutions, as same have been ratified, reaffirmed, broadened and extended by this resolution; and the City is in compliance with the Lease. (b) The paYments covenanted to be made into the Sinking Fund must be currently being made in the full amount as required. (c) The Lease shall have been amended to reflect the issuance of Additional Bonds and the increase in the Basic Lease PaYments necessitated thereby. (d) The Authority shall pass proper proceedings reciting that all of the above requirements have been met, shall authorize the issuance of the Additional Bonds and shall provide in such proceedings, among others, the date such Additional Bonds shall bear, the rate or rates of interest, maturity dates and redemption provisions, as well as the provisions for registration. The interest on the Additional Bonds of any such issue shall fall due on February 1 and August 1 of each year, and the principal shall mature in ,." 133202.1 -24- - installments on February 1, but, as to principal, not necessarily in each year or in equal installments. The proceedings for such Additional Bonds may contain additional covenants with respect to the maintenance and operation of the Leased Facilities and additional restrictions on the issuance of Additional Bonds, which covenants and restrictions shall, so long as, but only so long as, such Additional Bonds remain outstanding be for the benefit of any other Bonds secured by the Resolution. Any such proceeding or proceedings shall ratify and reaffirm, by reference, all of the applicable terms, conditions and provisions of the Resolution. (e) The Authority shall furnish the City with a duly certified copy of the resolution authorizing the issuance of such Additional Bonds and the City, acting by and through its Mayor and Council, shall acknowledge receipt of the certified copy of said resolution and retain same in its permanent records. (f) Such Additional Bonds and all proceedings relative thereto, and the security therefor, shall be validated as prescribed by law. Section 17. other provisions ADD1icab1e to series 1994 Bonds. All of the other terms, covenants, conditions and provisions of Article V of the Original Resolution, together with the applicable terms, covenants, conditions and provisions of Article VI, Article VII, Article VIII and Article IX and each Section and covenant thereof as broadened and extended by the 1990 Resolution and the .... 1993 Resolution not herein specifically referred to are hereby declared applicable to and are broadened and extended so as to cover the Series 1994 Bonds and any Additional Bonds therewith and are hereby ratified and reaffirmed as so broadened and extended and are hereby adopted and shall for all purposes apply to the Series 1994 Bonds as if said bonds had been originally issued under authority of the Prior Resolutions simultaneously with the Prior Bonds. Section 18. Non-Arbitraae Covenant. The Authority hereby covenants and agrees that it will not, subsequent to the date of the issuance and delivery of the Series 1994 Bonds, intentionally use any portion of the proceeds of the Series 1994 Bonds to acquire higher yielding investments, or to replace funds which were used directly or indirectly to acquire higher yielding investments, except as may otherwise be permitted by Section 148 of 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 1990 Bonds in compliance with the applicable provisions of Sections 141 to 149, inclusive, of the Code. Anything herein or .. 133202.1 -25- - ... .... in the Prior Resolutions 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 18. SectioD 19. Hon-Arbitraae Certificate. The Chairman and Secretary and Treasurer of the Authority are authorized and directed to execute, for and on behalf of the Authority, a certification based upon facts, estimates and circumstances, as to the reasonable expectations regarding the amount, expenditure and use of the proceeds of the Series 1994 Bonds, as well as such other documents (inClUding, without limitation, elections under Section 148 of the Code) as may be necessary or advisable in connection with the issuance and delivery of the Series 1994 Bonds. SectioD 20. Use of Proceeds. The Series 1994 Bonds are being issued by the Authority in compliance with the conditions necessary for interest income on the Series 1994 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 or political SUbdivision thereof. It is the intention of the Authority that the interest on the Series 1994 Bonds be and remain excludable from gross income for federal income tax purposes, and, to that end, the Authority hereby covenants with the owners of the Series 1994 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 1994 Bonds under Section 103 of the Code; and (b) that they will not directly or indirectly use or permit the use of any proceeds of the Series 1994 Bonds or any other funds of the Authority or take or omit to take any action that would cause the Series 1994 Bonds to be "arbitrage bonds" within the meaning of Section 148 of the Code. To that end, the Authority will comply with all requirements of Section 148 of the Code to the extent applicable to the Series 1992 Bonds. In the event that at any time the Authority 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 resolution, the Authority shall take such action as may be necessary. SectioD 21. DesianatioD of Series 1994 Bonds under the Code. The Series 1994 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. SectioD 22. Lease Contract. The Authority does hereby approve and accept the terms of the Third Amended and Restated 133202.1 -26- .. Lease Contract, dated as of September 1, 1989, entered into between it and the city, and agrees to take all action from time to time as may be necessary to effectively carry out the purpose and intention covered by the overall undertaking.. - section 23. Purther Authorization. The Chairman and the Secretary and Treasurer of the Authority are hereby authorized and directed to execute, for and on behalf of the Authority, such other agreements, certificates or documents as may be necessary in connection with the issuance, sale and delivery of the Series 1994 Bonds. Section 24. Offerina Documents and Bond Purchase Aareement. The Authority hereby approves the distribution of that certain Preliminary Official Statement, to be dated December 2, 1994, with respect to the Series 1994 Bonds. The preparation and distribution of a final Official Statement with respect to the Series 1994 Bonds in substantially the same form as said Preliminary Official Statement but containing the information included in this resolution, as supplemented, is hereby authorized and approved. An officer of the Authority is authorized to execute such final Official Statement of behalf of the Authority. The execution and delivery of the Bond Purchase Agreement, to be dated December 12, 1994, by and among the Authority, the City and Bank South Securities, in substantially the form presented at the meeting at which this resolution is adopted and recorded in the Minute Book of Authority is hereby authorized and approved. Section 25. Contract with Bondowners. The provisions of this .. resolution shall constitute a contract by and between the Authority, the City and the owners of the Prior Bonds and the Series 1994 Bonds authorized to be issued hereunder and the owners of any Additional Bonds subsequently issued by the Authority, and after the issuance of the Series 1994 Bonds, this resolution 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 Authority pass any proceedings in any way adversely affecting the rights of such owners or issuers, so long as any of the Bonds authorized by the Resolution, or the interest thereon, shall remain unpaid; provided, however, that this covenant shall not be construed as prohibiting modifications hereof or amendments hereto to the extent and in the manner as provided in Article IX of the Original Resolution, as ratified, reaffirmed, broadened and extended by the 1990 Resolution, the 1993 Resolution and this resolution. Any subsequent proceedings authorizing the issuance of Additional Bonds issued by the Authority as provided in the Resolution shall in nowise conflict with the terms and conditions of the Resolution, but shall, for all legal purposes, reaffirm all of the applicable covenants, agreements and provisions of the Resolution for the equal protection and benefit of all bondowners. .... 133202.1 -27- c ... ... ..., Sec1;ioD 26. Valida1;ioD. The Series 1994 Bonds herein authorized shall be validated in the manner provided by law, and to that end notice of the adoption of this resolution and a copy thereof shall be served upon the District Attorney of the Cobb Judicial Circuit, in order that proceedings for the above purpose be instituted in the Superior Court of Cobb County. Sec1;ioD 27. No CODflic1;s. Any and all resolutions or parts of resolutions in conflict with this resolution this day adopted be and the same are hereby repealed, and this resolution shall be in full force and effect from and after its adoption. 133202.1 -28- . ;( SECRETARY AND TREASURER'S CERTIFICATE GEORGIA, COBB COUNTY .., I, Willouise C . Spivey, Secretary and Treasurer of the Downtown Smyrna Development Authority, DO HEREBY CERTIFY that the foregoing pages constitute a true and correct copy of the resolution adopted by said Authority at an open public meeting duly called and lawfully assembled at 6:30 P.M., on the 22nd day of November, 1994 authorizing the issuance of not to exceed $7,650,000 aggregate principal amount of Downtown Smyrna Development Authority Revenue Bonds, Series 1994, the original of said resolution being duly recorded in the Minute Book of said Authority, which Minute Book is in my custody and control. I do hereby further certify that the following members of the Authority were present at said meeting: '. and that the following members were absent: and that said resolution was duly adopted by a vote of Aye Nay Abstain WITNESS my hand and the official seal of the Downtown Smyrna Development Authority this the ___ day of November, 1994. Secretary and Treasurer (8 E A L) ....., 133202.1