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September 5/18, 1989 Council Meeting September 5, 1989 The regular scheduled meeting of Mayor and Council was held pursuant to the Charter on September 5, 1989at Smyrna City Hall. The meeting was called to order at 7:30 o'clock p.m. by presiding officer Mayor A. Max Bacon. All council members were present except for Bob Davis who was absent due to a death in the family. Also present was City Administrator John Patterson, City Clerk Melinda Dameron, City Attorney Charles E. Camp, City Engineer Mike Hutchinson, Public Works Director Vic Broyles, Fire Chief Larry Williams, Personnel Director Jane Sargent, Acting Police Chief Kent Sims, Parks and Recreation Director Sherry Reavis, Finance Director Emory McHugh, Community Relations Director Kathy Barton, Library Director Laurel Best, Communications Director Steve Ciaccio and representatives of the press. ..... Invocation was given by York Chambless, retired pastor of Trinity Baptist Church followed by the pledge to the flag. , A preliminary report was submitted from former Mayor Harold Smith on the results of meetings with the Cobb County Historic Tourism Committee and the Montgomery Research Consultants on behalf of the City, with suggestions of several sites for walking and driving tours. A proclamation was read and presented to representatives from Brown Elementary School promoting PTA Membership Day. CITIZENS INPUT: Nothing to report. PUBLIC HEARINGS: (A) Variance request - side yard setback at 2711 Ivanhoe Lane. John Patterson said that Mr. Donald E. Gorman is requesting a variance to reduce the side yard setback from 10 to 4.9 feet for a garage at his home. The existing 10 x 10 metal building will be removed with a new 12 x 16 wooden building being placed on the existing concrete slab. Letters were submitted from the adjoining property owners stating they had no objections and there was no opposition from the audience. ... Mr. Gorman said he was just replacing the old metal building with a new, slightly larger one in the same location for storage of tools, garden equipment. With little discussion, Jack Shinall made a motion the variance be approved as requested. Kathy Jordan seconded the motion which carried 6-0. (B) Variance request - garage addition exceeding maximum size at 3097 Dunn Street. John Patterson said that Steve Ransbotham has requested a variance to build a 24 x 24 garage which exceeds the maximum size allowed by city code. Mr. Ransbotham's home is approximately 1700 square feet and the code allows an accessory building to be no more than 25% than that of the primary structure. There was no opposition. Mr. Ransbotham said their closet space for storage. room for the storage room requirements and their lot frontage. Letters were also stating they had no opposition home has no basement, with very little attic or This building would house their cars and provide they need. The building will meet all setback is the largest on the street, with 140 feet presented from the adjacent property owners to the variance. Jim Hawkins made a motion the variance be approved as requested. John Steely seconded the motion which carried 6-0. (C) Management change - liquor, beer and wine pouring - Red Lobster, 2579 ... Cobb Parkway. John Patterson stated that Helen Yvonne Kutch has made application to act as the new agent for Red Lobster Restaurant. The police investigation was favorable and there was no opposition from the audience. Ms. Kutch said she has been employed by Red Lobster for 17 years, originally in Marietta and then was transferred to Smyrna 7 years ago. Ms. Kutch said she understood she would be held responsible for any infractions and had previously held the license in her name at the Marietta location. Ms. Kutch said she also had read our ordinance and was familiar with them. September 5, 1989 meeting - continued Wade Lnenicka questioned the licensee and after transfer be approved. Bill Ms. Kutch at length about her responsibilities as further discussion, Mr. Lnenicka made a motion the Scoggins seconded the motion which carried 6-0. FORMAL BUSINESS: (A) Appointment to Civil Service Board. Jim Hawkins made a motion that J. Donnie Byrge be reappointed to the Civil Service Board for a 6 year term. Mr. Byrge is the Mayor and Council appointee to this Board. Bill Scoggins seconded the motion which carried 6-0. (B) Appointment to Parks and Recreation Commission ...., Wade Lnenicka made a Commission representing carried 6-0. motion Ward Mr. Peter Correa be reappointed to the Parks 2. Kathy Jordan seconded the motion which (C) Bid opening - motorcycles. Bids for motorcycles for the Police Department were opened, read and recorded as follows: Harley Davidson of Atlanta Metro Atlanta Cycle Sales Earl Small Harley-Davidson $6,198.00 - 1990 XRT $6,850.00 - 1989 Kawasaki $6,250.00 - 1990 XRT John Steely made a motion the bids be turned over to the Police Committee for their recommendation back to full council at the next meeting. Kathy Jordan seconded the motion which carried 6-0. (D) Bid opening - trailer mounted detour light. Bids for a trailer mounted detour light were opened, read and recorded as follows: Maxwell Hitchcock EEE Equipment DBJ, Inc. No bid No bid $4,366.00 ...., Jack Shinall made a motion the bids Committee for award, provided the bid seconded the motion which carried 6-0. be turned over to the Public Works meets specifications. Kathy Jordan (E) Bid opening - JD 510C loader/backhoe Bids for a new loader/backhoe were opened, read and recorded as follows: Flint Equipment $68,000.00 - John Deere 510C $10,000.00 - trade in allowance Metropolitan Tractor $64,900.00 - John Deere 510C + 1,100.00 - freight $11,000.00 - trade in allowance Forest Services, Inc. $66,210.00 - John Deere 510C $10,000.00 - trade in allowance Jack Shinall made a motion the bids be turned over to the committee for their recommendation back to full council for award at the next meeting. Jim Hawkins seconded the motion which carried 6-0. (F) Bid opening - jet vac 810C .... Bids for a new jet vac 810C were opened, read and recorded as follows: Samson Equipment Jet Vac, Inc. R. A. Phelps, Inc. Adams Equipment $165,906.00 $129,979.00 $144,092.50 $111,947.00 Jack Shinall made a motion the bids be turned over to the Public Works Committee for their recommendation back to full council for award at the next September 5, 1989 meeting - continued meeting. Kathy Jordan seconded the motion which carried 6-0. (G) Bid opening - brake lathe Bids for a new brake lathe were opened, read and recorded as follows: Chix Auto Parts $4,222.00 Jack Shinall made a motion the bid Committee to award the bid provided seconded the motion which carried 6-0. be turned over to the Public Works it meets specifications. Jim Hawkins ... (H) Approval to work Saturdays and Sundays at Highlands Park - Tolar Construction Company. Tolar Construction did not have a representative present and John Steely made a motion the request be denied. Bill Scoggins seconded the motion which carried 6-0. (I) Approval to create S.W.A.T. team in Police Department. John Patterson said funds are not presently available to create a S.W.A.T. team but training is necessary for implementation and approval could be given tonight for the training program which will take 8 to 12 months for completion. Captain Bill Hayes of the Smyrna Police Department presented the proposal for a S.W.A.T. team. This would be a voluntary program similar to the EMT program in the Fire Department. The training, which could be provided by the City of Atlanta or Cobb County, would help our officers deal with high risk situations that may be life threatening. There were initially 31 officers to sign up for the program and after the physical training, has narrowed down to 14 participating. There will be some special equipment needed after the initial training program including shields, vests, etc. but they were not prepared to present a projected cost. .. John Steely made a motion approval be granted for the Police Department to proceed in creating a S.W.A.T. team with funding to be discussed and approved at a later date. Wade Lnenicka seconded the motion which carried 6-0. BID AWARDS: (A) Computer upgrade equipment Jim Hawkins made a motion the bid for the computer upgrade equipment be awarded to DP Enterprises, the low bid at $20,630.62. Jack Shinall seconded the motion which carried 6-0. (B) Portable stage equipment Bill Scoggins made a Corporation, the low which carried 6-0. motion bidder the portable staging be awarded to Wenger at $3,430.00. John Steely seconded the motion COMMERCIAL BUILDING PERMITS: Nothing to report. CONSENT AGENDA: ... (A) Approval of minutes: 8/7/89, 8/10/89, 8/21/89 (B) Approval to request bids - computer equipment for Fire Department (C) Approval to request bids - Fire Department uniforms (D) Approval of resolution authorizing execution of lease with Downtown Development Authority Wade Lnenicka made a motion the consent agenda be approved. Jim Hawkins seconded the motion which carried 6-0. COUNCIL INPUT: John Steely said our Police Department will soon be receiving a dog trained to detect drugs thanks to the efforts of Larry Wood, one of our uniformed officers. Kathy Jordan said our Fire Department recently received their license certifying them as a first response unit. Bill Scoggins reported on activities in the Parks and Recreation Department and Kathy Barton reported on Clean City Committee activities. Wade Lnenicka gave a library report. ~Siness, A. MAX BACON, MAYOR meeting adjourned at 8:34 p.m. ..." September 18, 1989 The regular scheduled meeting of Mayor and Council was held September 18, 1989 at Smyrna City Hall. The meeting was called to order at 7:30 o'clock p.m. by presiding officer Mayor Protem Jim Hawkins. All council members were present. Also present was City Administrator John Patterson, City Clerk Melinda Dameron, City Attorney Charles E. Camp, Finance Director Emory McHugh, Parks and Recreation Director Sherry Reavis, Library Director Laurel Best, Community Relations Director Kathy Barton, Personnel Director Jane Sargent, Fire Chief Larry Williams, Acting Police Chief Major Kent Sims, Engineer Mike Hutchinson and representatives of the press. Mayor Protem Hawkins announced that Mayor Bacon was attending the National League of Cities Policy Leader's Seminar in Chicago. ....., Invocation was given by John Patterson, followed by the pledge to the flag. CITIZENS INPUT: Nothing to report. Kathy Jordan presented the Jonquility Commission member Robert Orange with capacity. Award plaque to outgoing Clean City her appreciation for serving in this PUBLIC HEARINGS: (A) Privilege license 3402 South Cobb Drive. beer and wine package sales at South Cobb Amoco, John Patterson this location. presented with investigation was and how they were stated that Leila G. Jackson has applied as license holder for This matter has been before council on two previous occasions, Robin Kim Jackson as license holder. The background favorable but there were some concerns with the distances measured. There was a large group in opposition. Waymon Lunsford, Chairman of the Board of Deacons of Sharon Baptist Church was sworn in representing the opposition along with Leila G. Jackson. Rob Flournoy represented Leila Jackson and stated that prior submitting this application he had read very carefully the alcoholic beverage ordinance before having the survey prepared. Mr. Flournoy said the ordinance is in two parts; one says that the structure of the licensee must be 300 feet from the church structure itself and there is another section that says it must be 200 feet to the property line; that is 200 feet from the center door of customer entry of the convenience store to the property line on which the church is located. City Engineer Mike Hutchinson had informed him that he was in error in his interpretation. Mr. Flournoy said the application utilized by the City clearly states on item (B) of the check list on the front page that churches should be 200 feet from the property line. Mr. Flournoy reminded council of the oath they had taken to uphold the ordinance without fear or favor and .",; ... ... ... September 18, 1989 meeting - continued said he would have never submitted this application without first making sure they had met all the requirements. In addition, he had also submitted a letter to the Business License Clerk and City Clerk asking that he be notified if there was anything lacking in the application to please notify him, and no one has notified him to say they do not meet distance requirements. Mr. Flournoy quoted a case from State law which stated basically that a license could not be denied without justification, merely by being labeled an alcoholic privilege license. While States and local governments have the right to regulate the sales of intoxicating beverages as a valid exercise of police power, the power to regulate the activity does not exempt the State from the operation of the 14th amendment. Absolute and uncontrolled discretion by governing authorities to issue licenses invites abuse. Municipal governments must exercise discretion and they must be tempered with ascertainable standards by which an applicant can seek to qualify for a license. In Georgia, a liquor licensing ordinance must provide sufficient objective standards to control the discretion of the governing authority and adequate notice must be given to applicants of the criteria for the issuance of the license. Mr. Flournoy said they met the criteria and this license must be issued; if not, he would file a law suit in which he would prevail. Mr. Lunsford said he knew council would do what was right tonight but as chairman of the board of Deacons, felt it would be very inappropriate to have to look out their church door directly across the street to see the beer lights at this location and believed it would deface their church to have them there. John Patterson read from Section 3-26 (8) of the ordinance which says that no license shall be issued for the sale of malt or vinous beverages, where the place of business of the applicant is located within a distance of 300 feet from any church, school, public park or library. Measurements in lineal feet shall be made from the center of any door of customer entry to the proposed premises of licensee to the nearest property line. Distance is also defined in the code as being the measurement in lineal feet from the front door of the proposed premises of licensee to the nearest property line of any church, school, library, college, private residence or public park as defined, by the nearest means of travel, which shall mean the normal route of ingress and egress of the property in question. City Engineer Mike Hutchinson measured the distance at 277 feet by the nearest means of travel as defined in the code. Mr. Flournoy agreed that the distance was less than 300 feet and his own survey showed a distance of 280 feet from the Amoco to the church. Mr. Flournoy completed reading Section 3-26 (8) which states that in no event shall the building containing such establishment be located closer than 200 feet from the property line of any church, as measured by any means of measurement. This requirement can also be waived by the owner of the affected property if they so desire. Mr. Flournoy said that obviously the court would have to interpret the ordinance and said he had contacted Mr. Camp to ask for his interpretation. He said the ordinance meant a distance of 300 feet to the church building and 200 feet to the property line. In addition, the application does not mention a 300 feet requirement. Mr. Camp said if Mr. Flournoy called about the distance requirement he may have misunderstood and he apologized if he did, but the ordinance clearly states a distance of 300 feet measured from the front door or business establishment to the property line. The 200 foot requirement is to prevent an applicant from circumventing the ordinance by placing the door of his customer entry in a location that would allow them to meet the 300 foot requirement. Jack Shinall reminded Mr. Flournoy that the responsibility of proof in applying for a license lies with the applicant and not an employee of the City. Mr. Shinall questioned Mrs. Jackson who stated she held 60% of the stock in the corporation for this license. Also, she is a stockholder in the corporation for the Amoco location at South Cobb and Powder Springs Road. Mrs. Jackson said she was aware of the recent violation at the Powder Springs location where one of the employees made a sale to an underaged person. Jack Shinall asked if the employee who made the sale was terminated after the violation and Mrs. Jackson said he was transferred to another location but has now been terminated. Mr. Lnenicka ~aid at the show cause hearings conducted last month, Mr. '- September 18, 1989 meeting - continued Flournoy stated that the employee of the Amoco location at Powder Springs and South Cobb had been immediately fired and Mrs. Jackson has just stated that he was transferred to another location after the violation occurred. Mr. Flournoy said he apologized for that, but was under the impression that the employee had been fired. Mr. Lnenicka said he was concerned that Mrs. Jackson, as a stockholder with controlling interest in these businesses may not be fully in control of the business operations. Mike Hutchinson was later sworn in by Mr. Camp and testified that he measured the distance with a measuring wheel which gives a good approximate estimate. He measured the distance from the location to the church at 277 feet, and 278 feet back the other way. Distance was measured from the center of the door on the south side of the station to the property by walking the best route to the property line at the driveway of the church. The distance was measured by the nearest means of travel and the property line was determined by the location of the utility poles. ....., John Steely made a motion the license be denied at 3402 South Cobb Drive because it does not meet distance requirements. Bill Scoggins seconded the motion. Jack Shinall read a portion of Section 3-22 of the ordinance which states that no original license for the sale of alcoholic beverages shall be issued to any person for pecuniary gain where any individual having an interest either as owner, partner, principal stockholder, directly or indirectly beneficial or absolute, or his spouse, shall have been convicted or shall have taken a plea of nolo contendere within 10 years immediately prior to the filing of said application for any felony or misdemeanor of the State or of the United States or any municipal ordinance except traffic violations. Wade Lnenicka asked Mr. Camp if he felt the application met all distance requirements. Mr. Camp said that is a decision that must be made by council; the measurement was made by the City Engineer and the ordinance says measurement must be made from the door to property line by the nearest means of travel. Vote on the motion to deny carried 6-0. (B) Variance - side yard setback reduction for addition to home at 345 Lee Street. John Patterson the side yard received from the audience. said that Carl and Nancy Hampton have requested a variance on setback from 10 to 7.5 feet to enlarge their den. A letter was the adjacent property owner and there was no opposition from ..., Mrs. Hampton by extending The addition closer to the said their den is now the south wall which will be a straight property line than the 12 x 19 and they would like to enlarge it now is 7 1/2 feet from the property line. line continuation and will not extend any existing structure. Wade Lnenicka made a motion the variance be approved as requested. Bob Davis seconded the motion which carried 6-0. (C) Zoning request - 1559 Roswell Street from Limited Commercial to General Commercial. Bill Scoggins made a motion the zon1ng be tabled to the October 2nd meeting at the request of the applicant, Edwin B. Davis. Wade Lnenicka seconded the motion which carried 6-0. (D) Variances Street. reduce lot width and side yard setback at 1559 Roswell Bill Scoggins made a meeting at the request which carried 6-0. motion the variances be tabled to the October 2nd of the applicant. Wade Lnenicka seconded the motion -- FORMAL BUSINESS: (A) Resolution - Civil Service Board appointment. Wade Lnenicka Bill Scoggins opposed. made a motion this item be tabled to the October 2nd meeting. seconded the motion which carried 5-1, with Jack Shinall (B) Set date to hear appeal of Recorders Court - Alice Roden. September 18, 1989 meeting - continued John Steely made a motion the appeal by Alice Roden be heard October 2, 1989. Kathy Jordan seconded the motion which carried 6-0. (C) Request to work weekends - Chateau Walk Subdivision. John Patterson said Jack Thompson has requested approval of an extension of working hours in Chateau Walk Subdivision for Saturday only from 8:00 a.m. to 6:00 p.m. for a one year period. Jack Shinall said this new development abuts a residential section and made a motion approval be granted to work Saturdays only from 9:00 a.m. to 4:00 p.m. for a 12 month period. Bob Davis seconded the motion which carried 6-0. ... (D) Request to work weekends - Ruby Tuesday's, South Cobb Drive. John Patterson said that Joe N. Guy Company has requested an extension of working hours to include Saturdays from 8:00 a.m. to 6:00 p.m. and Sundays from 10:00 a.m. to 4:00 p.m. for approximately 2 months to allow completion of the new Ruby Tuesday's on South Cobb Drive. Jack Shinall made a motion approval be given to work Saturdays only from 8:00 a.m. to 6:00 p.m., in keeping with our policy of not allowing Sunday construction work. Kathy Jordan seconded the motion which carried 5-0, with John Steely abstaining. (E) Approval to re-bid trailer mounted detour light. Jack Shinall said the bids opened at the last meeting for a trailer mounted detour light did not meet all specifications and made a motion the bids be rejected and re-bid. Kathy Jordan seconded the motion which carried 6-0. (F) Appointment to Clean City Commission - Ward 6. Kathy Jordan made a motion that Debbie Bellis of 2185 Trailwood Drive be appointed to the Clean City Commission representing Ward 6. Wade Lnenicka seconded the motion which carried 6-0. ... BID AWARDS: (A) Copiers for City Hall and Police Station. Wade Lnenicka made a motion the copier for City Hall be awarded to Eastman-Kodak at their bid price of $12,917.50 based upon their guaranteed response time for maintenance and service, quality and performance. Kathy Jordan seconded the motion which carried 6-0. John Steely made a motion the copier for the Police Department be awarded to Danka Business Systems for the Savin 7065 copier at $12,066.50 for price and excellent service provided the past several years. Kathy Jordan seconded the motion which carried 6-0. (B) Motorcycles for Police Department. John Steely made a motion the bid from Earl Small Harley be awarded to purchase three (3) Harley Davidson motorcycles at $6,250 each since they are a local dealer, making service and maintenance more convenient. Kathy Jordan seconded the motion which carried 6-0. (C) Backhoe for Public Works. ... Jack Shinall made a motion the backhoe for the Public Works Department be awarded to Metropolitan Tractor, the low bidder at $55,000. Kathy Jordan seconded the motion which carried 6-0. COMMERCIAL BUILDING PERMITS: Nothing to report. CONSENT AGENDA: (A) Request bids for sedan - Fire Department (B) Request bids for pool bathhouse - Jonquil Park (C) Paving Public Works complex apron Wade Lnenicka made a motion the consent agenda be approved. Bob Davis September 18, 1989 meeting - continued seconded the motion which carried 6-0. COUNCIL INPUT: John Steely read a letter from Ms. Joyce Gaines commending Officers Lee and Ables on the kind and courteous manner in which they responded to an accident involving her daughter several days. Mr. Steely expressed his appreciation to the Police Department and especially to these two officers. Kathy Jordan reminded everyone to please be mindful of the construction on Windy Hill Road which will take some time to complete. Jack Shinall said he had received several calls from Hickory Acres Subdivision homeowners about Hickory Acres Drive being opened up into the new Chateau Walk Subdivision and assured everyone that this street will remain closed. The work that is going on at the end of the street is water line construction, since they are in the City and must tie onto the City water line. ...." Jack Shinall said there are two music studios operating from homes in his area and he has received quite a new complaints about the noise. Bill Scoggins reported on activities in the Parks and Recreation Department. Wade Lnenicka Smyrna High Mr. Lnenicka surgery. said he went to the first football game of the School and was very pleased with the support of the also wished Barbara Patterson a speedy recovery from season for community. her recent City Engineer Mike Hutchinson said his department along with the Fire Department would begin inspections of the Heritage Apartments next week. Jim Hawkins said the Georgia Convenience Store Association held a seminar at City Hall today to educate alcoholic beverage license holders on how to properly card people. The meeting was very well attended and Mr. Hawkins said he was pleased to see the business people in our community supporting the program. Mr. Hawkins said the North Georgia State Fair will start September 21st and run through the 30th. ...." With no further business, meeting adjourned at 8:40 p.m. September 25, 1989 ...; A special called meeting of Mayor and Council was held September 25, 1989 at 6:30 p.m. to consider the appointment to the Civil Service Board now held by John Davis. All council members were present. Also present was City Administrator John Patterson and City Attorney Charles E. Camp. Mayor Bacon said that Mr. consecutive meetings of year. Section 77(3) of member who fails to attend Davis had missed and failed to attend thirteen (13) the Civil Service Board from June to August of this the City Charter calls for the removal of any Board two consecutive meetings. Mr. Davis said he felt it was a privilege and honor to be able to serve on September 25, 1989 meeting - continued ... the Civil Service and had always participated in the meetings 100% until recently. In May of this year his company informed him that he was being transferred to Canada for a short period of time; no more than 3 or 4 months. At that time he met with other members of the Board and explained the situation to them, since he was appointed by the other two members. Mr. Davis said he has served approximately 4 years and was appointed by Ted Farland and Roland Williams. When he met with the Board to discuss his transfer it was agreed that it would not be necessary to bring this matter before council, that it would be worked out and business could be conducted without interruption. Mr. Davis said he has stayed in constant touch with the Board and is at home every 2 weeks at which time he goes to the Board room to read minutes, mail, etc. to bring himself up to date on what has taken place during his absence. Mr. Davis said he had been present at all the activities going on with regard to hiring the new Police Chief. He did not want anyone to feel that his absence from these meetings indicated he did not care, but his job had left him no choice. Mayor Bacon asked Mr. Davis if he was aware of the ordinance calling for the termination of the position for failing to attend two consecutive meetings and Mr. Davis said he was but felt he had done the right thing by talking with the other two board members. To the best of his knowledge, the job should end in approximately 6 weeks and there was no reason to believe that he would be called out of town again. Ted Farland said when Mr. Davis talked with them about his transfer, they did not anticipate the unusually high number of meetings that have been held and did not think it would create any problems. While quite a number of meetings were held from the first of June to mid-July, most of those meetings were to review resumes and applications for the Chief's position and did not involve testing or interviewing for promotions or hiring in the Police or Fire Departments. .. Jack Shinall asked why the Civil Service Board had met so many times this summer. Ted Farland said that initially the Board was asked to submit the top 20 names of applicants for Police Chief, which they did. Later, however, the other applications were reviewed by members of council and they were asked to test and interview all applicants. Mr. Farland said the criteria for hiring the new Police Chief had been completely changed during the process and had taken them much longer than anticipated. The next few weeks will involve rating the applicants and aligning the names for presentation to council. During discussion, the other members of the Civil Service were unanimous in their feeling that the hiring process for a new Chief had not been hindered or delayed by Mr. Davis' absence at any of the meetings. Mayor Bacon concluded the meeting and told Mr. Davis he would be notified of council's decision at a later date. With no further business, meeting adjourned. ... &~ ( , '- ... I ... Iii Ii , I I I it LEASE CONTRACT ,. " between p: I I I: !", j"l liii;! IH : F'\ . iHI .: 11.1 I"'. I:' i '-': :. r " I ;' ~ !I. il I; .1 'I ',l 1:.[ i. .~ ii, !t ! ) ~ i ';, I I' I I . DOWNTOWN SMYRNA DEVELOPMENT AUTHORITY and CITY OF SMYRNA Dated as of September 1, 1989 i 1 i I I' d II q !! LEASE CONTRACT THIS LEASE CONTRACT is entered into as of September I, 1989, bY and between the DOWNTOWN SMYRNA DEVELOPMENT AUTHORITY (the 'Authority"), a body corporate and politi.c and deemed to be a litical subdivision and public corporation of the State of "" ~orgia created and existi.ng under the Constitution of the State of Georgia, as Lessor, and 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 ~ontracts hereinafter contained, the Authority and the Lessee agree as follows: ART I CLE 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 ~ntract 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" means any of the Authority's revenue bonds nnking on a parity with the Series 1989 Bonds which may hereafter be issued pursuant to Article V, section 4 of the Resolution. ~... It; .., "Authority" shall mean the Downtown Authority, its successors and assigns. Smyrna Development "Authority Act" shall mean Georgia Laws 1988, p. 4382 et sea. "Basic Lease Payments" means an amount equal to the principal of and the interest on the Bonds coming due on the next succeeding February 1 and an amount equal to 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 ~t previously credited to a Basic Lease PaYment. In addition to ~e foregoing, each Basic Lease PaYment shall include the charges b billed specified in subparagraphs (e), (f) and (g) of section 3, Article V of the Resolution and any deficit in any preceding ~sic Lease Payment. "Bondholder" and "bondholder" means the registered owner of ~y of the outstanding Bonds. ... ----L ..... . . "Bonds" shall mean any revenue bonds authorized by and issued ~rsuant to the Resolution, including the series 1989 Bonds and any ~ditio~al Bonds of the Authority issued pursuant to the Resolutl.On. "capi tal Improvement proqram" shall mean the Smyrna Master plan, Phase I: community Center and Library project No. 88190, dated september ..' 1989, prepared by the sizemore Floyd ~chitects, Atlanta, Georgia for the Lessee and the Authority. "city" or "Lessee" means the city of Smyrna, its successors and assigns. "Fiscal Year" means the fiscal year for the city as may ~ designated by appropriate proceedings of the city. "Lease" or "contract" means this Lease contract, as from time to time amended. "Lease Term" shall have the meaning specified in section 4.1 bereof. "Leased Facilities" means the facili ties and real property financed with the proceeds of the Series 1989 Bonds and Additional Bonds issued by the Authority. "permi tted Encumbrances" means liens and encumbrances existing on the date of acquisition by the Authority of any Leased Facilities. "permitted Investments" shall mean and include any of the following securities, if and to the extent the same are at the time leqal for investment of Authority funds: (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, Inc. 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 1 -2- ~ ~ ;~ ~/ l';7:.'. \ ~ 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, trust company or national banking association and must be either (a) continu- ously 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 market 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 interest 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; l J (v) any repurchase agreement wi th 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 or standard & poor's corporation either equivalent to or higher 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 t J (vi) pooled investment programs sponsored by the state of Georgia for the investment of local government funds. "project Fund" shall mean the Downtown Smyrna Development Authori ty proj ect Fund created in Article IV, section 2 of the Resolution. "proj ect Fund Depository" means ini tially 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 Project Fund Depository shall at all times be a commercial bank. ... -3- "Resolution" means that certain bond resolution of the Autho- rity adopted September 5, 1989 authorizing the issuance of the series 1989 Bonds and as same may 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" reeans the Bonds authorized to be issued pursuant to Article II of the Resolution. "Sinking Fund" shall mean the Downtown Smyrna Development Authori ty Sinking Fund created in Article V, Section 1 of the Resolution. "Sinking Fund CUstodian" means initially Smyrna Bank and Trust Co., Smyrna, Georgia, its successors and assigns, or any successor custodian for the Sinking Fund hereafter appointed by the Authority; provided, however, the Sinking Fund CUstodian shall at all times be a commercial bank. "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. ReDresentations bv the Authoritv. The Author- ity makes the following representations as the basis for the undertakings on its part herein contained: (a) The Authori ty 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 Series 1989 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 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; -4- (c) 'I'he 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 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 Agreements 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 obli- gation enforceable in accordance with its terms, except as enforcement may be limited 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 perfor- mance 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; ... -5- (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 t.o 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 us.a" as said te>rm io defined in Section :141 of the Internal Revenue Code of 1936, as amended, so as to preserve the exemption from federal income taxation applicable to the interest paid on the Bonds. The Lessee will not enter into leases 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 (5) years: (ii) compensation to the concessionaire is not based on net profits from the operations: (iii) The Lessee (or Authority) has the option to cancel the contract without penalty at the end of any three (3) year period: and (iv) At least fifty percentum (50%) of the compen- sation to the concessionaire must be on a fixed fee bases (i.e. the other portion can be on the basis of gross revenue) . ARTICLE III. section 3.1. Leasinq. 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. A reement to Issue series 1989 Bonds. A lica- tion of Bond Proceeds. The Authority agrees that it will validate and cause to be issued the series 1989 Bonds, the proceeds of which LEASING: ISSUANCE OF BONDS: PROCEEDS: COMMENCEMENT AND COMPLETION OF THE PROJECTS -6- ~_. -- _.,.~~ shall be applied as provided in Article IV, section 1 of the Resolution. section 3.3. proi ect Fund Monevs. The City and. the Authority J agree to cooperate with each other and will take such acti.on 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 Capital Improvement Program or any program or report approved and ratified by the Authority and the city with respect to any issue of Additional Bonds. Any costs and expenses incurred in connection with the issuance and delivery of the S&ries 1989 Bonds not paid by the purchaser of the Series 1989 Bonds shall be borne by the City and shall be paid for the account of the City. Section 3.4. Aqreement to Construct the Proiects. (a) The Authority hereby appoints the Lessee as its agent to proceed forthwith with the Capital Improvement Program. The Lessee shall obtain or cause to be obtained all necessary approvals from any and all governmental agencies requisi te to undertaking the capital Improvement Program and the 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 t correcting of any defective work, and the Authority agrees that the J..... 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 Capital Improvement Program with all reasonable dispatch and shall 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 pub 1 ic 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 the part of the Lessee. .. -7- (c) The Lessee shall create on its books and records special accounts for the Project Fund as to any issue of Bonds providing ""~oj ect Fund moneys, a separate account each of which shall be esignated as "Series Capital Improvement Account II l hereinafter referred to as a "Capital Improvement Account II). The \...pneys credited to the Series 1989 Capital Improvement Account Shall be used and applied for the purpose of paying the cost of the Leased Facilities in accordance with the Capital Improvement program and otherwise disbursed as herein provided. The moneys derived from the sale of any Additional Bonds under the Resolut:i.on to be credited to the related 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 with the capital improvement program or report approved and ratified by the Authority and the City with respect 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 the same is a proper charge against the Project Fund and has not been paid, specifying the purpose and circumstances of such obligation in reasonable detail and to whom such obliga- tion 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 repre- senting 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 .... -8- 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 consti tute part of the Leased Facilities. "" (f) The City will do or qause 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 subcon- tractor 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. (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 bondholder. section 3.5. In Event Pro;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. ...., ... -9- section 3.6. Investment of Pro; ect Fund Monevs Permitted. 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 ~rm. This Lease shall become effective as of september 1, 1989 and the leasehold interest created by this Lease shall then begin, and, subject to the other provisions of this Lease (including particularly Article VIII hereof), shall expire February 2, 2016, 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 .ade, but in no event in excess of fifty (50) years from the date hereof. section 4.2. Deliverv and Acceptance of possession. The Authority agrees to deliver to the Lessee sole and exclusive possession of the Leased Facilities upon delivery of the Series 1989 Bonds and the Lessee agrees to accept possession of the Leased Facilities upon delivery of the Series 1989 Bonds 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. section 4.3 Basic Lease Payments. ~~l f. ~ \ ! On or before January 15 and July 15 of each year, commencing with July 15, 1990, the City shall make the Basic Lease Payments to the Authority if such date is January 15th, an amount sufficient to pay the principal of and interest on the Bonds coming due on February 1, and if such date is July ~5th, 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 said Bonds. In addition to the foregoing, each Basic Lease Payments shall include the charges as billed specified in subparagraphs (e), (f) and (g) of Section 3, Article V of the 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. Section 4.4 ODerating Exnenses. 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, audi t fees, any incidental expenses of the -, j -10- ~tbority and such other charges as may properly be made for the utPose of operating, maintaining and repairin~ the Leased ~acilities in accordance with sound business practice. section 4.5. optional prepayment of Rent: Redemption of ~. (a) The rent due under section 4.3 shall be subject to pre- payment, in whole or in part, for the purpose of call ing and redeeming, at the option of the city, all or part of the Bonds in accordance with the provisions of Article III of the Resolution, provided, however, that the funds used to prepay such rent have ~en deposited to the Sinking Fund prior to the giving of notice to redeem by the Bond Registrar (as defined in the Resolution) to ~e bondholders, and the Lessee shall pay all costs which may be ~curred 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 ~e provisions of the preceding subsection shall relieve the Lessee to any extent from its obligations thereafter to make the full ~sic 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. . . 1 'J t I J 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, any acts or circumstances that may constitute failure of consider- ation, 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 suPdivision of either or any failure of the Authority to perform and observe any agreement, - -11- Whether express or implied, or any duty, liability or obligation lrising out of or connected with this Lease or the Resolution. rothing contained in this section shall be const.t"Ued to release the luthority from the performance of any of the agreements on its part <J1erein 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 Lassee contained in the preceding sentence and to make the payments specified in section 4.3 hereof; provided, however any liabili ty of the Authori ty 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 Authori ty , 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. "i' section 4.7. Tax Levv to Pav Basic Lease Payments. (a) The obligations of the Lessee to make the Basic Lease ?ayments when due under section 4.3 hereof, and to perform its ther obligations hereunder, are absolute and uncondi tional as herein provided, and the Lessee hereby pledges its full faith and .credit to such payment and performance. f (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 qeneral 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 payments that may be required to be made from its general funds shall constitute a qeneral obligation of the Lessee and a pledge of the full faith and credit of the Lessee to provide the funds required to fulfill any such Obligation. -12- / (c) In the event for any reason any such provision or appropriation is not made as provided in the preceding subsection (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. '. ,#I .. ARTICLE V SPECIAL COVENANTS OF CITY The City covenants and agrees with the Authority for the bene- fit of the bondholders as follows: section 5.1. Rules and Reaulations. 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. I . ~ section 5.2. Contractina Procedure. That any contract rela- ting 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 dis- charged, or will make adequate provisions to satisfy and discharge, within sixty (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 - -13- 'If. 1 Facilities, or any part thereof: provided, however, that nothing '~ contained in this section shall require the City to pay, or cause 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 bondholders 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 .7 dispose of the Leased Facil i ties 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 required 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 deposi ted in trust and appl ied by the Authority to the extent' -' -14- necessary to purchase or redeem such Bonds. Nothing contained herein, however, shall preclude sale of a part of the Leased Facili ties, if the proceeds from such sale are used for other public projects to be owned and operated by the city, 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 . Arbi traae. The City hereby covenants and agrees that it will not, subsequent to the date of issuance and delivery of the Series 1989 Bonds, intentionally use any portion of the proceeds of said Series 1989 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 Resolution, 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 Series 1989 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 Series 1989 Bonds and will take such action as may be necessary so that the interest on the Series 1989 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 Resolution 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 Warrantv of Condition or suitabilitv bv 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 Facil i ties. The Lessee agrees that the Authority, the bondholders 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. Grantina 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 otherwise, easements, licenses, rights-of-way (temporary or .., -15- .. 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 I~ase 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 Authcrity 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 Instrument. Recordings 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 Section 7.1. Events of Default Defined. The following shall be "events of default" 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; (b) Failure by the Lessee to observe and perform any covenant, condition or agreement of this Lease on its part to -16- be observed or performed, other than as referred to in subsection (a) of this Section, for a period of thirty (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 bondholders, unless the Authority and the bondholders 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 bondh.alders 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 default" 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 bondholders 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 bondholders may, at its option, declare all installments of rent payable under Section 4.3 hereof for the remainder of the Lease Term to be immediately due and payable, whereupon the same shall become .. immediately due and payable. If the Authority or the bondholders 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 Term, 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 Authori ty or the bondholders may seek the appointment of a receiver for the Leased Facilities; (c) The Authority or the bondholders may require the Lessee to furnish copies of all books and records of the Lessee pertaining to the Leased Facilities; .. -17- .f (d) The Authority or the bondholders 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 bondholders 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. T section 7.3. No Remedv Exclusive. No remedy herein conferred upon or reserved to the Authority or the bondholders 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 bondholders 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 bondholders, and the holders of the Bonds shall be deemed third party beneficiaries of all covenants and agreements herein contained. section 7.4. Aqreement to Pav Attornevs' Fees and Exoenses. If the Lessee should default under any of the provisions of this Lease and either or both the Authority or the bondholders should employ attorneys or incur other expenses for the collection of rents or the enforcement of performance or observance of any obli- gation or agreement on the part of the Lessee herein contained, the Lessee agrees that it shall on demand therefor pay to the Authority, the bondholders the reasonable fee of such attorneys and such other reasonable expenses so incurred by the Authority and the bondholders. Section 7.5. No Additional Waiver ImDlied bv 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. -18- ARTICLE VIII OPTION OF LESSEE section 8.1. Unqualified option to Purchase. On and after the effective date of this Lease and during the Lease Term and for three hundred sixty-five (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 provi- sions of this Article VIII shall be One Hundred Dollars ($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 One Hundred Dollars ($100) to be paid to the Authority. .. section 8.3. Procedure For Exercisina 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 9.1. 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. Bindina 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 ~ -19- jurisdiction, such holding shall not invalidate or render unen- ~ forceable any other provision hereof. section 9.4. Amounts Remainina in Sinking 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. Changes 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 bondholders in accordance with the Resolution. section 9.6. Execution Counteroarts. 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. caotions. 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 Governing Pro; ect 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 Authori ty , 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 9.10. 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 9.11. Ooeratina 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. -20- IN WITNESS WHEREOF, 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 at.tested by their duly authorized officers, all as of the date first above written. ~E AUTHORITY: (corporate Seal) DOWNTOWN SMYRNA DEVELOPMENT AUTHORITY By' /~~ Chairman Attest: / ~ secretary My commission expir~.IIptary Public. Cobb County, Georgia llyCommission Expires Sept. 12, 1991 (Notarial Seal) TH'E I..ESSEE: CITY OF SMY~ By: ~~- Mayor (Seal) Attest: f9!dt~tI~ !{JV1A~ Clerk As to the Lessee, signed and sealed in the presence of: . r.\~:.~::..,,, ~'j...J"?2:;'~~'~" C,-.~i.:-b [{:~-"''-~'1', c.~-.=;~:~ My commission exp;l;t~.$":~..., '" <";p<e <: > 't ',"] ",'L 1 ':~'.,y \..r;....',:'!i,\::,;:_..-,~rl Lr..'-.......~-' ,.cp . ......._, .L~.::;I. (Notarial Seal) .. ----- .", .., u :1 :, ! BOND RESOLUTION A RESOLUTION TO PROVIDB POR THE ACQUISITION, CONSTRUCTION, RENOVATION AND BQUIPMENT 01' BUILDINGS AND RELATBD PACILITIBS POR THE REDBVBLOPMBNT 01' THB DOWN'l'On AREA 01' THE CITY 01' SKYRNA; TO PROVIDB POR CAPITALIZBD INTBREST DURING CONSTRUCTION; TO PROVIDB POR THE ISSUANCB 01' DORTOn SHYRNA DBVBLOPMENT , AUTHORITY REVENUB BONDS, SBRIBS 1989, TO PROVIDB pOHDS TO BB 'I APPLIBD TOWARD THE COST 01' THE OVBRALL OHDBRTAKING NOW CONTBMPLATBD; TO PROVIDB POR THE ISSUANCB 01' ADDITIONAL PARI PASSU OBLIGATIONS; TO PROVIDB POR THB CREATION AND KAINTBNANCE 01' CERTAIN POHDS; TO PROVIDB POR THE REMEDIBS 01' THE OWNBRS OF SAID BONDS, AND POR OTHER PURPOSBS: WHBREAS, pursuant to an amendmen~ to Article VII, Section VII, Paragraph I of the Constitution of the State of Georgia of 1945 (Georgia Laws 1970, p. 1117 et seg.) and now specifically continued pursuant to an Act of the General Assembly (Georgia Laws 1986, p. 3957 et seg.) as a part of the Constitution of the State of Georgia of 1986, and under the provisions of Georgia Laws 1988, p. 4382, et seg., known as the "Downtown Smyrna Development Authority Act" there was created a body corporate and politic, designated as the "Downtown Smyrna Development Authori ty" (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 thereof, 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 Authori ty 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 WHBREAS, the City of Smyrna, 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 is an urgent need for certain capital improvements to be made; and ,I ,1 I 'I il ~, ~.. . t ft: ~, 1 ,~ WHEREAS, the investment banking firm of Lex Jolley & Co., Inc., Atlanta, Georgia (hereafter sometimes referred to as "investment banker") has recommended to the City that, in order to accomplish the foregoing objective, the Authority should undertake to acquire, construct and equip such capital improvement and lease same (hereinafter referred to as "Leased Facilities") to the City, which would then operate and maintain or cause to be operated and maintained said Leased Facilities, and the City and the Authority, after their own independent study, have concurred in such recommendations; 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 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 sometimes referred to as "Capital Improvement Program"; and 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, said investment banker has recommended to the Authority that provision should be made to capitalize interest on such. revenue bonds during a portion of the construction period; and II II I! I' ii 'WHEREAS, to finance the undertaking now contemplated the Authority proposes to issue the $6,430,000 principal amount of its Revenue Bonds, Series 1989 (hereinafter sometimes referred to as "Series 1989 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 1989 Bonds to the purchaser thereof, the Authority will adopt a resolution supplementing this resolution and said supplemental resolution, among other things, will set forth the interest rate or rates that the bonds hereinafter authorized to be issued will bear, will specify 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 purchasers 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, the Authority and the City of Smyrna, pursuant to resolutions duly adopted, will enter into a Lease Contract, dated as of September 1, 1989 (the "Lease"), pursuant to which the Authority has leased to the City on a net lease basis and II ,1 I -2- t ~ t J . J ..... -, - , the City will make Basic Lease Payments directly to the Sinking Fund CUstodian for the account of the Authority in amounts sufficient to enable the Authority to pay the principal of and interest on the Series 1989 Bonds as same become due and payable, all as more fully set forth in said Lease, an executed duplicate original of said Lease being duly recorded in the Minute Book of the Authority, which Minute Book is kept in the office of the Secretary and Treasurer of the Authority, and said Lease, by this reference thereto, is incorporated herein and made a part hereof; and WHEREAS, prior to the actual issuance and delivery of the Series 1989 Bonds hereinafter authorized to be issued, the Authority will enter into a contract with a bank located in Atlanta, Georgia, pursuant to which such bank will agree to act as paying Agent and as Bond Registrar for the Series 1989 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 bonds of this issue by the manual signature of a duly authorized officer of the 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 1989 Bonds as same become due and payable; and WHEREAS, the Authority intends to issue additional revenue bonds early in 1990 to provide funds to complete the overall undertaking now contemplated in accordance with the capital Improvement Program and, in addition in order to provide for future additions, extensions and improvements to the Leased Facilities, 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 Series 1989 Bonds hereinafter authorized to be issued. ! I, i: ' II !. . I NOW, TllBREI'ORB, . BB IT RESOLVED by the Downtown Smyrna Development Authority, and it is hereby resolved by authority of the same, as follows: ..... ! I il -]- - '\ I \ \ ! In addition to the terms hereinabove defined, whenever the following terms are used in this resolution, the same, unless the context shall clearly indicate another or different meaning or intent, shall be construed or used and are intended to have the meaning as follows: f ARTICLE I DEFINITIONS ....,' "Additional Bonds" shall mean any revenue bonds of the Authority ranking on a parity with the Series 1989 Bonds I which may hereafter be issued pursuant to Article V, Section '14 hereof. ! .1 "Authority" shall mean the Downtown Smyrna Development \ Authority, its successors or assigns. I I ! "Authority Act" shall mean Georgia Laws 3.988, p. 4328 et seq. \ \ "Basic Lease payment" means the aggregate amount equal i to the principal of and interest on the Bonds coming due on II 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 ;1 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 i\Of this resolution and any deficit in any preceding Basic ; Lease paYment. .1 :\ "Bondholder" and "bondholder" means the registered : owner of any of the outstanding Bonds. . "Bond Reqistrar" means the commercial bank appointed by I the Authority to maintain, in accordance with the provisions ! of this resolution and any supplemental resolution, the registration books of the Authority for any series of Bonds secured by this resolution. .... "Bonds" shall mean any revenue bonds authorized by and issued pursuant to this resolution, including the series \ 1989 .Bonds and any Additional Bonds of the Authority issued Ii pursuant to this resolution. I 1-1 \ \ \ II ... . I " ' , , I "capital Improvement proqram" sh~ll mean the Smyrna I Master Plan, Phase I: Community Center and Library Project II No. 88190, dated september, 1989, prepared by the Sizemore Floyd Architects, Atlanta, Georgia, for the Authority and the city. "City" or "Lessee" means the City of Smyrna, its successors and assigns. "Lease" or "contract" means the Lease Contract, dated as of september 1, 1989, by and between the Authority and city of Smyrna, as same from time to time may be amended. I "Leased Facilities" means the facilities and real i property financed with the proceeds of the Series 1989 Bonds I and Additional Bonds issued by the Authority. I - . I : "payinq Aqent" means the commercial bank or banks ! appointed by the Authority to serve as paying agent, in I, accordance with the terms of this resolution and any supplemental resolution, for "any series of Bonds secured by , this resolution. "permitted Encumbrances" means liens and encumbrances existing on-the date of acquisition by the Authority of any Leased Facilities. I I i I I i "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: (i) any bonds or other obliqations 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 Associa- tion, the Federal Financing Bank, the Federal Interme- 1-2 :1 ,\ j :1 ! diate Credit Banks, Federal Banks for Cooperatives, Federal Home Loan Banks, Farmers Home Administration and Federal Home Loan Mortgage Association; : II :i (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 certi- ficates of deposit must be purchased directly from such bank, trust company or national banking association and must be either (a) continuously and fully insured by the Federal Deposit Insurance Corporation, or (b) con- tinuously and fully secured by such securities as are described in clauses (ii) and (iii) above which (1) have a market 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 particu- lar fund custodian and not subject to any security interest 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 aggre- gate 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 organ- ized under the laws of any state of the United states of America or any national banking association, pro- vided if such bank's or association's principal office is located outside Gwinnett County, such bank or association either (a) has a long term debt rating by Moody's Investors service, Inc. or Standard & Poor's corporation either equivalent to or higher 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. I-3 'I I il . J J ~ ~ ",' " : ' 1 ; t' "project Fund" shall mean the Downtown Smyrna Development Authority project Fund created in Article IV, section 2 of the Resolution. ...... :.. "project Fund Depository" means initially Smyrna Bank ~l and Trust Co., Smyrna, Georgia, its successors and assigns, 1 or any successor depository for the project Fund hereafter , appointed by the Authority with the approval of the city: , provided, however, the project Fund Depository shall at all 4 times be a commercial bank. : "Resolution" means this bond resolution, and as same 1 may be supplemented from time to time. ! ;f " I 1 I . I "series 1989 Bonds" means the revenue bonds author1zed ; to be issued pursuant to Article II of this resolution. I i "sinking Fund" shall mean the Downtown Smyrna . Development Authority Sinking Fund created in Article V, Section 1 of this resolution. "sinking J'UDd custodian" means initially smyrna Bank and Trust Co., Smyrna, Georgia, its successors and assigns, or any successor custodian for the Sinking Fund hereafter appointed by the Authority: provided, however, the Sinking Fund custodian shall at all times be a commercial bank. ... ;~ "Sinkinq J'UDd 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. Whenever used in this resolution, the singular shall include the plural and the plural shall include the singular, unless the context otherwise indicates. 1-4 ... i :1 :\ :\ - 1--' ~ RESOLLJrrON ~jHERE..l\S, after careful study and consultation the City of Srayrna has determined an urgent need for certain capital iIT!f?rovements to be made for the re-development of the Doymtovm Smyrna Area in order to better pr~note the public health, safety and welfare of the citizens of Snwrna, Georgia w~d to encourage the gro\vth and fiscal well being of the City; Al'D \'JHE&SAS, to accomplish said ends the City has caused a DowntOvn1 Develo~~ent Authority to be constituted under the laws of the State of Georgia, and its members duly appointed; AND ~1HEREAS, the undertaking contemplated can be accoillt)lished substantially in accordance \vith a report prepared by Sizemore Floyd Architects, Atlanta, Georgia , dated Septerlloer, 1989, entitled "Smyrna r.1aster Plan, Phase I: Community Center and Library Project lb. 88190"; AND NHEREAS, under said Haster Plan, it is both desireable and necessary to acquire certain parcels of land, lying within the boundaries described in said I.1aster Plan to construct a public library and a c~umunity center and the roadways, parking facilities, and planted areas, attendant and appurtenant thereto; I '.... AND \'7HEREl\S, the City of Smyrna has heretofore attempted to obtain said parcels through negotiation and offer of contract at their appraised value and have been unable to acquire the sa~e; NJWTHEREFORE, the premises considered be it resolved: It is necessary and essential that the City of Smyrna shall acquire the title, estate or interest in the lands lying within the boundar ies of the aforesaid r.1aster Plan for the purpose of construction of a corrununity center and a public library for the furtherw~ce of the public interest of the citizens of the City of Smyrna, therefore, the r'1ayor or I'layor Pro :rem of the City of Srnyrna is hereby authorized to do all acts and take all action necessary to acquire said properties; The construction of a co~nw1ity center and a public liorary and all necessary easements, rights of '>'lay, sidewalks, public access areas, facilities and landscape areas, on the lands lying vlithin the boudaries of the ioLaster Plan is a valid public purpose; r I .. The City of Smyrna has caused an investigation and report to be made by a cornpetent. land appraiser, upon ""hich to estimate the sum of rl10ney to be deposited in the Court as just and adequate cornpensat ion for the property and other r ignts, if any, as shmm on said plans; The City of Smyrna estimates the just and adequate compensation to be in the SW11 equal to the appraised value, and determines that it is necessary to acquire the property and "" -... - other rights, if any, as shovm on the H.:lster Plan, without further delay, the parcels of property and other rights being essential for the construction of said project; .. The City of Smyrna declares that it is necessary that the title, interest, easements and other rights as shovm on said plans, which have not been negotiated for voluntary acquisition, be acquired by condemnation, and that said property or interest therein as descr ibed in the I'Jaster Plan be acquired by condernnation for public and goverruuental purposes, specifically for community center and public library, and that the same is necessary for the construction of the project. The City of Smyrna, through its J>1ayor and Council does hereby authorize the acqusition of the title, estate or interest in the lands described in the plans, by condemnation under the provisions of law in the absence of voluntary ac(~isition, does exercise its power of eminent domain, and does authorize the filing of conde~'ation proceedings, including a Declaration of Taking, or other such proceedings, to acquire such title, estate of interest in said lands and to deposit in the Court the sura est1nated as just compensation in an ai110unt equal to the appraised value. The Hayor or Hayor Pro Tern is authorized to execute such Declarations of 'raking or other instruments as may be necessary to effect the acquisition as herein described, including but not liIuited to proceeding before a Special r''laster af)pointed by the Cobb County, Georgia Superior Court. The property to be acquired under this shmm on a plat of the Master Plan and is now by and consists of the owners and parcels on hereto marked "Exhibit A". Resolution is as or formerly mvned the list attached ~ - ADDRESS 1246 Sunset Avenue 2756 N. Atlanta Street ,., 1239/1245 Sunset Street 1296 Sunset Avenue 2780 N. Atlanta Street 1236-1240 Sunset Avenue 1224 Sunset Street 1265 Sunset Street 1215 Sunset Avenue 1256/1270 Sunset Avenue 1284 Sunset Avenue 1271 Sunset Avenue 1302 Sunset Avenue 1255 Sunset Avenue P-t 1275 Bank Street UJet.cGT eo SUNSET AVENUE G LAND ACQUISITION INFOm PROPERTY DESCRIPTION Mary Aaron John Robert Aiola Lad 'N' Lassie Day Care - John Butler R. L. Carter and Associates (Antique Shop) Ray Carter John W. and Claudia Falk Jane Ann Hamby Patricia A. and Lee McDonald Mrs. Pettett Frank Tufts George C. Walker (Dry Cleaners) William C. and Louann York Old Smyrna Theater - Bruce and Kermit Cooper Levi Day J. D. Farmer - Hard Times Armory 2748 Atlanta Road and Danny Fisher 1285 & 1297 Powder Springs Street 2683/2685/2691 Fuller St. 2788 N. Atlanta Street 1275 Powder Springs Street 2740 Atlanta Street 2278 Atlanta Street ... David Monroe (Behind Second Baptist Church) G. Scott Perkins Richard Pierce Alice Shedd Roland Thomas