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December 4/18, 1989 Council Meeting December 4, 1989 The regular scheduled meeting of Mayor and Council was held pursuant to the Charter on December 4, 1989. 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. Also present was City Administrator John Patterson, City Attorney Charles E. Camp, City Clerk Melinda Dameron, Public Works Director Vic Broyles, Parks and Recreation Director Sherry Reavis, Library Director Laurel Best, Fire Chief Larry Williams, Acting Police Chief Kent Sims, Personnel Director Jane Sargent, Communications Supervisor Cheryl Crain, Finance Director Emory McHugh, Building Inspector Scott Stokes and representatives of the press. .... Invocation was given by Chuck Moon, pastor of Tillman Methodist Church, followed by the pledge to the flag. CITIZENS INPUT: John Steely presented a plaque to Lt. Raymond E. Ferguson, retiring from the Smyrna Police Department after 17 years service. Mayor Bacon recognized a group donations of food or money for Muscular Dystrophy Association. of Tae needy Kwon Do families students who requested at Christmas and for the PUBLIC HEARINGS: (A) Annexation of property at Church Road and Old Concord Road. Jack Shinall made a motion the Joe L. Thompson property, fronting on Church Road be annexed into the City to be made a part of Ward 5, the legal description having been read and made a part of the minutes of the November 6, 1989 meeting. Kathy Jordan seconded the motion which carried 7-0. (B) Variance request - rear yard setback at lot 8, Vinings Glen ... John Patterson stated that Georgia Federal Bank is requesting a reduction of the rear yard setback from 30 to 20 feet at lot 8, Cutler Ridge in the Vinings Glen Subdivision. Georgia Federal foreclosed on this lot after the foundation construction was completed. There were two in opposition to the variance and they were sworn in with Lou Mathews from Georgia Federal Bank. Mr. Mathews said they foreclosed on the property October 1st and they now have another party interested in purchasing it. The foundation has already been poured and the back corner encroaches onto the setback line of adjacent homes in Cedar Cliffs Subdivision. Construction was originally begun by Lane Homebuilders and Mr. Mathews said the new contract is contingent upon the variance being granted. Mr. Mathews said it would cost approximately $3,500 to remove the foundation plus the additional cost of the new construction. Wade Lnenicka asked Mr. Mathews if he had been able to reach any agreement with the adjacent homeowners. Mr. Mathews said he had not; they had offered to provide a screened buffer but the adjacent homeowners would not agree to it. They contacted five property owners and three of those did not offer any opposition but they would not be directly impacted. There is one letter in support of the variance and the others contacted did not respond. Mr. Mathews said the bank has approximately $69,000 invested in the lot and foundation and said the encroachment was discovered when the spot was made for the foundation. Robert Chapman spoke in opposition and stated his home abutted the rear of this lot. He felt the height of the home would be an eyesore and thought it would detract from the value of his home and neighborhood ... Skip Symonds estate agent their opinion value. also look that spoke in opposition and stated he recently had a real at his home which is adjacent to this property and it was the placement of this house would lower his property Robert Gsegner asked to he also owned property lot. This will be a two the basement to be eye buffer would not help requirements. During speak and was sworn in by Mr. Camp. Mr. Gsegner said nearby and felt the home was simply too big for the story home and the topography of the land will cause level with his home. Mr. Gsegner said he felt that a and any home built on the lot should meet setback discussion, Mr. Camp said council could require December 4, 1989 meeting - continued a buffer in consideration of the variance, but otherwise could not require them to provide one. After hearing all discussion Wade Lnenicka said these are mitigating circumstances and he had feelings for both sides. The bank inherited the problem and did not ask for it. Mr. Lnenicka said he appreciated Mr. Mathews cooperation in this matter as well as the homeowners who are affected by this variance. Mr. Lnenicka said he felt the homeowners had the right to expect council to enforce the ordinance as written and not allow a situation such as this that may be harmful to them. They felt approval of this variance would cause visual and financial harm through the devaluation of their property. For those reasons, Wade Lnenicka made a motion the variance be denied. John Steely seconded the motion. Jack Shinall said he would support the motion because it appears that the builder intentionally built the foundation of the home, knowing it would not meet setback requirements. Vote on the motion to deny the variance carried 7-0. ..... (C) Variance request - rear yard setback at 4290 Ridgehurst Drive, Vinings Glen Subdivision. John Patterson stated that Mr. Sham Kapur is requesting a variance to reduce the rear yard setback of his home from 30 to 2 feet at 4290 Ridgehurst Drive. This variance is to allow construction of a deck, and apparently the builder did not understand our setback rules as they apply to decks. The deck on the Kapur's property is approximately 10 feet above the ground and extends across the back yard to within about 2 feet of the rear property line. Letters were obtained from the two affected property owners stating they had no objections and there was no opposition from the audience. Mr. Kapur said Lane Homebuilders was also the original contractor of this home. They have been trying to complete the house for one year and have encountered numerous problems because of him. Mr. Kapur said the house is about 80% complete and the deck is under construction. While the deck was shown on the original plans, they have extended it some. Wade Lnenicka said the neighbors affected by the variance have agreed to it although it will cause them to lose a great deal of privacy and the topography of the land is such that not having the deck there would not gain anything because the retaining wall and 10 or 12 foot drop behind the home prohibits any clearance through the back yard. After further discussion, Wade Lnenicka made a motion the variance be approved as requested. John Steely said he would not support the motion because this appears to be a flagrant violation of the code on the part of the builder and it should have been detected sooner. Jack Shinall said he also would not support the motion because it appears that he planned the house from the onset knowing that it would not meet code requirements and the sub contractors also continued with construction. Vote on the motion to approve the variance carried 4-3, with Jack Shinall, John Steely and Kathy Jordan opposed. ..., (D) Variance request - side yard setback at 3790 Autumn Place John Patterson stated that James and Pamela Teague have requested a variance to reduce the side yard setback from 33.3 to 25 feet for the addition of a 25 x 25 attached garage. There was no opposition and a petition was presented from the surrounding property owners stating they had no objections to the variance. John Steely said the original garage attached to the house had been enclosed to expand living space in the home and the Teague's are now requesting the variance to construct a new garage for their vehicles. The addition will be shingled and will match the exterior finish of the house. With little discussion John Steely made a motion the variance be approved. Wade Lnenicka seconded the motion which carried 7-0. .... (E) Zoning request property at Old Roswell Road and Roswell Road from Future Commercial to Limited Commercial John Patterson stated that Mrs. Levi Day is requesting the rezoning of this property to build a beauty shop. She presently owns a beauty shop on Sunset Avenue which was recently purchased by the City for the new Community Center and Library. There was a group in opposition to the zoning and five were sworn in along with Mrs. Day and Sherman Whitaker, owner of the property. December 4, 1989 meeting - continued Sherman Whitaker presented plans for the beauty shop, which would be a 1200 foot building designed to look like a residential structure to blend with the neighborhood. They have also consulted with an architect to help them with the landscape design but nothing has been finalized. Mrs. Day said she had been in business in Smyrna since 1945. Her present hours of operation are from 9:00 a.m. to 5:00 p.m. but occasionally she may have a few evening appointments. Mrs. Day said her granddaughter would be working with her when they moved to the new location. They will be willing to reduce their parking spaces to 12 and would agree to placing the parking area in either the front or back. The sign will be small and attractive, probably made from etched redwood. ... Jack Shinall asked Mr. Whitaker what factors indicated that the area is changing from residential to commercial. Mr. Whitaker said that less than 1,000 feet north of the property is a 26,000 square foot office building and the entire street is spotted with commercial zoning. This lot is at a 4-way intersection with the adjoining lot being future commercial and general commercial directly across the street. Mr. Sherman said he felt it was a lot that should and can be used for commercial purposes. Jack Shinall said the future commercial category requires a specific zoning use and the FC category does not automatically support the ar<]ument of rezoning. Joe Price said he owned the adjacent triangle and was concerned for the safety of the people living in the neighborhood because there are more homes than there are businesses. Old Roswell is a very quiet street and there are quite a few children living and playing there. Mr. Price said he also felt that 17 parking spaces as shown on the plans would be excessive and he would like that to be reduced. Mr. Price said he was neither for or against the zoning but if approved he would like a stipulation that if Mrs. Day moves out the zoning would revert to 0&1 or similar category. Casey Claven also spoke and said she lived across the street from the property and was neither for or against the zoning. Ms. Claven said she was also concerned about the signage and hoped if the zoning was approved they would place restrictions on the property to require a sign that would blend with the residential atmosphere and reduce the parking spaces. - Nancy McGee of 1389 Roswell Street spoke in opposition and said her home was about 5 doors up from this property Ms. McGee read and presented a petition bearing 25 signatures opposing the rezoning and stated this would be a spot zoning and a detriment to community safety and the aesthetics, morals and well being of the residential community surrounding it. Ms. McGee said this development would not enhance the neighborhood and other than the one future commercial lot next door and the general commercial property across the street, this lot was surrounded by homes. Ms. McGee said her home was built in 1905 by her great grandfather and she did not think this development would be healthy or attractive for the neighborhood. Jeff Dobbins also spoke in opposltion to the zoning and said that this property is surrounded by residential property and there are 26 other lots within one mile that could be developed for a beauty shop with the $110,000 the City had paid for Mrs. Day's property. Mr. Dobbins said commercial development needs to be initiated from the other end of Roswell Road and not in the center of the residential area. Mr. Clint McKinney said he was an architect with a business on Spring Road in Smyrna and from what he had heard tonight, felt the design of the building would fit in with the neighborhood. He felt the idea of cutting down on the number of parking spaces seemed to be a good solution and did not foresee the adverse impact being suggested tonight. ... Sharon Price asked to speak and was sworn in by Mr. Camp. Mrs. Price said she lives on Old Roswell Road and has an 11 year old. She was concerned with the safety for the children who play in the area and especially was concerned that there would be an entrance on Old Roswell Road. Bill Scoggins consideration of said he did not could carryover to said Mrs. Day had agreed to several stipulations in the zoning including limiting hours of operation. Mr. Camp think council could place a restriction such as that which any future tenants. December 4, 1989 meeting - continued Following lengthy discussion, Bill Scoggins said he also was concerned about the neighborhood but the closest people to this property have agreed to the zoning. Mr. Scoggins said he could see both sides of the argument but did not have any reason to believe he could prohibit commercial zonings on Roswell Street and felt if we did not use and rely on the expertise and recommendations of the Planning and Zoning Board then he did not feel we need them. In addition, the future land use plan designated this property for commercial use. Mr. Scoggins said he did not think he had the right to deny the use of the property and felt the safety concerns discussed tonight could be resolved. Bill Scoggins made a motion the zoning be approved from future commercial to limited commercial seconded by John Steely. Jack Shinall said he could not support the zoning because he felt the map presented earlier tonight clearly ... shows that the residential character of the neighborhood has been retained. Council must make zoning decisions based on the health, morals and welfare of the communi ty and there have been n'J major improvements or changes in the area to support the change from future commercial to a specific commercial use. Safety is also a major concern for the residents who live in the area. Bill Scoggins amended the motion to approve the zoning with the stipulations that parking be limited to 12 spaces, with one curb cut on Roswell Road, sign to be no larger than 16 square feet, hours of operation be restricted from 9:00 a.m. to 6:00 p.m. and that a buffer be required as suggested by the City Engineer on the back side of the lot next to the Porch and Price property. John Steely seconded the amendments. Bill Scoggins then amended the motion again to include a stipulation that the building be constructed according to plans submitted tonight, seconded by John Steely. Vote on both amendments carried 5-2 with Jack Shinall and Jim Hawkins opposed. Vote on the main motion to rezone the property carried 4-3 with Wade Lnenicka, Jack Shinall and Jim Hawkins opposed. FORMAL BUSINESS: (A) Bid opening - hand held meter reading units Bids were opened, read and recorded as follows: Syscon Corporation Neptune Meter PPS $13,550 $14,295 $16,404 plus $100 shipping & $90/mo service fee ... Jim Hawkins made a motion the bids be turned over to committee for their recommendation back to council at the next meeting. John Steely seconded the motion which carried 7-0. (B) Bid opening - lighting of softball field at Rose Garden Park Bids were opened, read and recorded as follows: Lynn Lighting Company AAA Electrical Wiley & Wiley Lighting Group $18,625 $24,551 $18,560 $22,310 Bill Scoggins made a motion the bids be turned over to the Parks Committee for their recommendation back at the next meeting. John Steely seconded the motion which carried 7-0. (C) Appointments to Planning & Zoning Board Wade Lnenicka made a motion that Edward Paden be reappointed to the Planning & Zoning Board representing Ward 2. John Steely seconded the motion which carried 7-0. ... Bill Scoggins made a motion that R. J. McCurry be reappointed to the Planning & Zoning Board representing Ward 3. Wade Lnenicka seconded the motion which carried 7-0. Jack Shinall Zoning Board carried 7-0. made a motion that Evelyn Kent be reappointed to the Planning & representing Ward 5. Kathy Jordan seconded the motion which December 4, 1989 meeting - continued Kathy Jordan made a motion that George Griffin be reappointed to the Planning & Zoning Board representing Ward 6. Bill Scoggins seconded the motion which carried 7-0. Upon the recommendation of Mayor Bacon, John Steely made a motion that Allen Potter be reappointed as Chairman of the Planning and Zoning Board. Jim Hawkins seconded the motion which carried 7-0. (D) Approval of revision to business license schedule ... John Patterson said the business license fees have not been modified since 1982 and recently the Finance and Administration Committee, working with the Mayor and Council and the Business Advisory Committee reviewed the fee schedule and came to a consensus on the modifications that would enable the City to raise additional funds needed to meet the needs of the City and at the same time, be fair to the business community. Jim Hawkins said they had met with som9 of the members of the Smyrna Business Association for their input and as a result of that meeting have modified some of the categories over what was ,originally proposed for adoption. This is a lengthy document and will be on file in the City Clerk's office. Mr. Hawkins said we have not had an increase in license fees in about 8 years and the percentage of revenues being provided from licenses has actually decreased from our overall revenues in the last few years. Jim Hawkins made a motion the business license schedule be adopted as submitted tonight. Bill Scoggins seconded the motion which carried 7-0. (E) Road Validation of signatures to annex 66 acres at Church and Old Concord Attorney Camp read the petition signed by Herbert A. Head, Sr. to annex his property at Church and Old Concord Roads as follows: .. We the undersigned, who constitute sixty percent (60%) of the land owners of the land area by acreage, as described below, which is unincorporated and contiguous to the City of Smyrna, hereby apply to have said area annexed into the City of Smyrna under the provisions of laws of the State of Georgia, said property being annexed being described as follows: All that tract or parcel of land lying and being in Land Lots 308, 269, 268, 237 and 236 of the 17th District, 2nd Section, Cobb County, Georgia, and being more particularly described as follows: BEGINNING at a point on the north side of Church Road where it intersects with the common corner to Land Lots 307, 308, 269 and 270; thence south along the west land lot line of Land Lot 308 to a point at the centerline of Nickajack Creek; thence running in a southerly and southwesterly direction along the centerline of Nickajack Creek and following the meanderings thereof to the west line of Land Lot 268; continuing thence along the centerline of Nickajack Creek in a northerly and northwesterly direction to a point on the west land lot line of Land Lot 236; thence south along the west line of Land Lots 236 and 237 a distance of 446 feet more or less; thence running southeasterly a distance of 2,545 feet more or less to the west line of Land Lot 309; thence north along the west line of Land Lot 309 to a point at the corner common to Land Lots 308, 309, 268 and 269; thence east along the south line of Land Lot 308 to a point at the corner common to Land Lots 341, 340, 308 and 309; thence north along the east line of Land Lot 308 to the north side of Church Road; continuing thence along the north right of way line of Church Road to the corner common to Land Lots 307, 308, 269 and 270 and point of BEGINNING. ... WHEREFORE, THE UNDERSIGNED HEREBY APPLY FOR SUCH ANNEXATION. Witness the hands and seals of 60% of the record title holders of the land described above: s/HERBERT A. HEAD, SR. Jack Shinall set for the carried 7-0. made a motion the petition be validated and the public hearing first meeting in January. Jim Hawkins seconded the motion which BID AWARDS: Jack Works Shinall made a motion the bid for a 12 foot dump truck for the Public Department be awarded to Fouts Brothers at $27,767. Bob Davis seconded December 4, 1989 meeting - continued the motion which carried 6-0, with Bill Scoggins abstaining. Jack Shinall made a motion the steam cleaner for the Public Works Department be awarded to Zep Manufacturing at $2,400. Jim Hawkins seconded the motion which carried 7-0. John Steely made a motion the computer workstations for the Communications Department be awarded to Computer Solutions at their bid price of $12,789. Bill Scoggins seconded the motion which carried 7-0. Kathy Jordan made to Fouts Brothers motion which carried a motion the bid for the new fire rescue truck be awarded at their bid price of $34,973. Bob Davis seconded the 6-0 with Bill Scoggins abstaining. ...., Bill Scoggins made a motion the lighting at Tolleson Park basketball court be awarded to Lynn Lighting, the low bid at $6,720. John Steely seconded the motion which carried 7-0. COMMERCIAL BUILDING PERMITS: (A) HCB Contractors requested a office at 1088 Concord Road at Hawkins made a motion the permit be which carried 7-0. building permit for the new Georgia Power a total estimated cost of $676,000. Jim approved. John Steely seconded the motion (B) Smyrna Cable TV requested a building permit for a new office building at 2939 Anderson Circle at a total estimated cost of $87,000. John Steely made a motion the permit be approved. Bob Davis seconded the motion which carried 7-0. (C) Wendy's International requested a building permit for construction of a new restaurant on South Cobb Drive at Kenwood Road at a total estimated cost of $350,000. John Steely made a motion the permit be approved. Kathy Jordan seconded the motion which carried 7-0. (D) Heritage General Contractors requested a building permit for construction of a new Empress Chinese Restaurant at 2575 South Cobb Drive at a total estimated cost of $80,000. Kathy Jordan made a motion the permit be approved. Jim Hawkins seconded the motion which carried 7-0. ...., CONSENT AGENDA: (A) Approval of minutes: November 6 and November 20, 1989 Bill Scoggins made a motion the minutes of November 6, 1989 be approved as submitted. Wade Lnenicka seconded the motion which carried 7-0. Bill Scoggins made a motion the minutes submitted. Wade Lnenicka seconded the Shinall abstaining. of November 20, 1989 be approved as motion which carried 6-0, with Jack COUNCIL INPUT: Wade excerpt from a report vision of the City to development of our city. Lnenicka reported on library activities and read an from the Planning & Zoning Board reflecting their help council in defining the long range plans for Bill Scoggins gave a report from the Parks Department. Jack Shinall requested that the Fire Department not issue burning permits in neighborhoods where there are people with known asthmatic conditions. Mr. Shinall also reported that the STEP unit has decreased the speeding and traffic problems on Plaza Drive that were reported several months ago. The STEP unit is available for selective enforcement by calling the Smyrna Police Department directly. ...., John Steely reported that our new Police Chief would be here December 15th and thanked Kent Sims for the good job he did in the interim. Mayor Bacon expressed his appreciation to the Communications staff for their assistance and efficiency in responding to the calls following the plane crash last month. He failed to recognize them and the Parks and Public Works employees at the last meeting and apologized for that. December 4, 1989 meeting - continued With no further business, meeting adjourned at 10:13 p.m. /~6~ ----- zJfd4-';/.J-- MELINDA DAME N .... A. ~ BA. CON, MAYOR /d~~ BO~~IS' WARD~l BlL ----- WADE LNENICKA, 2 /~hJ' ;/~~ ?<JAMES M. HAWKINS, WARD 4 ,/7 ," rtrd~ #w~ lkvuftH0 KA HY BR JdRDAN, WARD 6 Vi L December 18, 1989 The regular scheduled meeting of Mayor and Council was held December 18, 1989 at 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. Also present was City Administrator John Patterson, City Clerk Melinda Dameron, City Attorney Charles E. Camp, Library Director Laurel Best, Parks and Recreation Director Sherry Reavis, Communications Director Steve Ciaccio, Engineer Mike Hutchinson, Major Kent Sims, Fire Chief Larry Williams, Public Works Director Vic Broyles, Police Chief Stan Hook, Personnel Director Jane Sargent, Community Relations Director Kathy Barton, Finance Director Emory McHugh and representatives of the press. Invocation was given by John Patterson, followed by the pledge to the flag. .. CITIZENS INPUT: Eddie Helman, Franklin Bost and George Boyd of the Cedar Cliffs Homeowners Association expressed their appreciation to the entire Mayor and Council for their efforts this past year with the downtown development and also presented a certificate to Wade Lnenicka in appreciation for his work and achievements on behalf of the City of Smyrna and citizens of Ward 2. Bob Arnold and Stan Sullivan presented a Authority for $55,000, with $35,000 being for and $20,000 for Spring Road resurfacing. check from the Smyrna Housing the Lake Park Drive resurfacing PUBLIC HEARINGS: (A) Annexation of property in Land Lot 491, Dixie Avenue and Hillside Drive Kathy Jordan made a motion the request by Robert C. Davis to annex .50 acres at Dixie Avenue and Hillside Drive be approved to become a part of Ward 6, the legal description being read and made a part of the minutes of the November 20, 1989 meeting. John Steely seconded the motion which carried 7-0. (B) Variance - relocation of sign for Ruby Tuesday's, 3197 South Cobb Drive ... John Patterson said that Ruby Tuesday's has requested a variance to relocate their business sign from the north side of their property to the south side, to within two feet of the adjacent property line. City code requires a distance of no less than 12 feet from the nearest property line. They felt the relocation would give better visibility to traffic on Concord Road and would also give customers sufficient reaction time to make a lane change before entering from the South Cobb Drive side. There was no opposition. Alton Abernathy with Acken Signs and Len Moore, General Manager of Ruby Tuesday's were present and stated the existing sign would be relocated and it would meet all other requirements. The variance signs were posted on the property and they had received no inquiries. Following discussion, Jim Hawkins made a motion the variance be approved to December 18, 1989 meeting - continued relocate adjacent 7-0. the sign to the south side of their property to within 2 feet of the owners property line. John Steely seconded the motion which carried (C) Variance - reduce side yard setback at 3320 South Cobb Drive John Patterson stated that Mr. C. R. Shah of A-1 Self Storage is requesting this variance to reduce the side setback from 20 feet to 0 feet to allow him to convert the existing car wash to an office warehouse by enclosing the structure and adding approximately a 100 x 16 foot addition. The car wash structure has a zero foot setback along Radcliff Road which is not a dedicated street. Mr. Shah notified the adjacent affected property owners of the variance request by certified mail. There was no opposition. ..., Mr. Shah presented pictures of his existing car wash with a rendering of the building as it would look when completed. Mr. Shah said it would be a part of the mini warehouse complex and would be no closer to the street than it is currently. The new building will be comparable to the offices adjacent to him that are owned by Mr. Dickson. Mr. Shah said he had notified the Dickson's by certified mail but had received no response from them. After further discussion, Jim Hawkins made a motion the variance be approved as requested. Wade Lnenicka seconded the motion which carried 7-0. (D) Zoning - 3016 Atlanta Road from Future Commercial to Limited Commercial John Patterson said that Mr. Sham Kapur is requesting the rezoning of this property at the northwest intersection of Quarles Avenue and Atlanta Road to be leased to a beauty shop. There has been an engineering firm at this address in the past and a business is currently operating at this location. The change in zoning will not require any variances. Mr. Kapur and Mr. Joe Williams were sworn in by Chuck Camp. Mr. Kapur said he had a tenant in the house who is operating a beauty shop and he had assumed the property was properly zoned but realized it was not when his tenant applied for a business license. Mr. Kapur said he had been renting to businesses for a number of years, to an antique shop and engineering firm. ....- Wade Lnenicka said the Planning and Zoning Board had recommended approval with several stipulations; 1) that a 10 foot undisturbed buffer be maintained; 2) that there not be any high beam lights used at the rear of the property and 3) the Engineering Department recommended that no curb cuts be allowed on Atlanta Road. Mr. Kapur said he would agree to those stipulations and would install and maintain a 6 foot hedge type buffer on the rear line. The entrance is presently from the Quarles Avenue side and they would not request a curb cut from Atlanta Road. Mr. Lnenicka said when they met with the neighbors there was also some discussion as to whether or not the parking area should be paved or unpaved, for a more rustic look. The Engineering Department has recommended paved parking and Jack Shinall reminded Mr. Kapur that the paved parking is an ordinance requirement that must be met as a condition to zoning. A minimum of 8 spaces would be required, which is determined by the building size. Mr. Lnenicka said the Engineering Department has also recommended that curbing be installed only where necessary to control water runoff and reminded Mr. Kapur that only this building will be allowed on the property. Any other structures must be approved by council. Mr. Lnenicka said the Engineering Department has also recommended that the entrance from Quarles Avenue be configured so that customers will have access only to Atlanta Road. Mr. Kapur said he had no objections to that but thought it would be difficult to control and he did not expect the traffic to be sufficient to create any problems. Jim Hawkins reminded Mr. Quarles and Atlanta Road Future Commercial. Paved well. Mr. Kapur said he license section several for use as an antique rezoned. Kapur that his property on the adjacent corner of was being operated as a business and also zoned parking must also be provided on this property as had received a letter from a clerk in the business years ago certifying that the property was suitable shop but understood now that the property should be .... Mr. Lnenicka said that since these businesses have been operating for some period of time, they had been granted a temporary business permit and asked Mr. Camp if there was some period of time that should be given to Mr. Kapur December 18, 1989 meeting - continued to complete the requirements placed on the zoning. Mr. Camp said he could do that, but it would be hard to determine what a reasonable length of time would be and if it is not completed within the time allowed, they would be in violation. John Patterson said with the winter season, he felt 6 months would be a reasonable time to complete the paving and other requirements. Mr. Joe Williams said kept clean because he said he would like to maintained. Also he was could potentially cause the slope. he was concerned about the property and buffer being owns property on the back side of this. Mr. Williams have a stipulation that the property be properly concerned about the paving of the parking area which a water runoff problem onto his property because of ... After further discussion, Wade Lnenicka thanked Nancy Konigsmark for hosting a neighborhood meeting at her home to discuss the concerns of residents in the area. They have no objections to a beauty shop at this location and the concerns they raised have been addressed. Mr. Lnenicka made a motion the property be rezoned from Future Commercial to Limited Commercial with the following stipulations: 1) That a 6 foot minimum height opaque natural buffer be planted and maintained at the rear of the property line 2) No high beam security or street lights be used at night at the rear of the property 3) No curb cuts allowed on the Atlanta Road side 4) Paved parking be provided, limited to a maximum of 8 spaces 5) Curbing be installed only where required to control water runoff 6) Curb cut on Quarles Avenue must be configured so that only traffic from and to Atlanta Road can enter the parking area Jim Hawkins seconded the motion which carried 7-0. FORMAL BUSINESS: (A) Resolution to preserve tax exempt bonds for State and Local governments .,. John Patterson said that tax exempt bonds are an effective, cost effective means for State and Local governments to raise funds for various projects and programs and over the last several years there has been much discussion about eliminating the tax exempt status of these bonds. This resolution is to urge the continuance of the tax exempt bonds and will be sent to our Congressional delegation asking for their support. Jim Hawkins said the Resolution would be on file in the City Clerk's office and made a motion it be approved as submitted. Wade Lnenicka seconded the motion which carried 7-0. (B) Bid opening - utility body for one-ton truck Bids for the utility body for a one-ton truck were opened, read and recorded as follows: Fouts Brothers $3,346 $3,118 Holmes H108 Morrison M1080 Ingram Truck Body $3,127 125 base price freight Truck Transport $4,876 ... Jim Hawkins made a motion the bids be turned over to the Finance Committee to either award the low bid or return to full council with a recommendation for purchase. Wade Lnenicka seconded the motion which carried 7-0. (C) Set date to hear appeal of Recorders Court Bill Scoggins made a motion the Recorders Court appeal date for Malia Steinmacher be set for January 2, 1990. John Steely seconded the motion which carried 7-0. (D) Approval of speed zone ordinance John Patterson said that in July of this year, a new speed zone ordinance was December 18, 1989 meeting - continued submitted to the state for their approval. Of primary concern was the addition of Windy Hill Road now that construction is completed and it has been entirely annexed into the City. The state Department of Transportation approved the ordinance with several changes to the speed limits being recommended in some of the residential areas. John Steely seconded by ordinance be John Steely carried 7-0. made a motion the speed zone ordinance be approved as submitted, Bob Davis. After discussion, Jack Shinall made a motion the amended by deleting Floyd Drive to allow it to remain at 25 MPH. seconded the amendment. Vote on the amendment and main motion BID AWARDS: ..... (A) Ballfield lighting at Rose Garden Park Bill Scoggins made a motion the lo~ bid of $18,560 from Wiley & Wiley be accepted for the ballfield lighting at Rose Garden Park. John Steely seconded the motion which carried 7-0. COMMERCIAL BUILDING PERMITS: (A) P.L.L. Associates requested a building permit for construction of a used car sales office for Chuck Clancy Ford at 2787 South Cobb Drive at a total estimated cost of $25,000. Jack Shinall made a motion the permit be approved. Wade Lnenicka seconded the motion which carried 7-0. CONSENT AGENDA: (A) Change date of first meeting in January to January 2, 1990 (B) Acquisition of Raymond A. Moon sewer line Kathy Jordan made a motion the consent agenda be approved. Wade Lnenicka seconded the motion which carried 7-0. SHOW CAUSE HEARING - TENNECO, 1166 CONCORD ROAD Smyrna Police Captain Ted Kirby was sworn in along with Ernest Park, District Manager for Tenneco. License holder Robert Cyrus Walburn was present but Mr. ~ Park said he would represent Tenneco and would speak for him tonight. Captain Kirby said that on the evening of November 30, 1989 during their sting operation, their 20 year old male buyer purchased a 6 pack of Budweiser light beer from a clerk at the Tenneco at 1166 Concord Road. The clerk, Henry Ofundoye, checked the identification but still made the sale after making some comment about him being over 18 and a legal age to buy. Mr. Park said he was the District Manager for Tenneco in charge of operations for all stores and apologized for having to appear for the third time. There are three Tennecos in the City and they have all been cited in spite of their efforts to properly train their clerks. Mr. Park said they conduct their own sting operations and when an employee fails to card someone, they are written up and given additional training on the first incident with future incidents leading to dismissal. In this case the employee admitted making the sale after asking for the license and believing the young man to be of legal age. After further discussion, Jim Hawkins made a motion the license for this location be suspended for 30 days effective at 12:01 midnight. Bob Davis seconded the motion which carried 7-0. COUNCIL INPUT: Wade Lnenicka expressed his appreciation to the Cedar Cliff Homeowners for the recognition tonight. Mr. Lnenicka said he had now served 2 years on council and was very pleased with the way this council has chosen to work together and with the long range goals they have established. ...., Jim Hawkins asked that Vic Broyles conduct a study to determine the cost and feasibility for a left turn signal on Concord Road at King street. Jack Shinall stated he has asked John Patterson to draft an amendment to the zoning ordinance which would require advertisement and public hearing notices for the Planning and Zoning Board meetings. As it stands now, only the developer has the opportunity to present his ideas to the Board and the public should also be able to provide input. John Steely said he would also like a study done for a turn signal on Concord December 18, 1989 meeting - continued Road at Old Concord because this is a heavily traveled road and a high risk area. John Steely welcomed Chief Hook to Smyrna and his first council meeting and also expressed his appreciation to Kent Sims for serving as interim Chief. With no further business, meeting adjourned at 8:46 p.m. ~~~~ ... A. MAX BACON, ~ 62~ ,/C L~ BOB DAVIS, WARD J -" ME.. LI Nf A DAME vJ~ ' WADE LNENICKA, W D 2 k~P7.//~ t/-fAMES Mo. HAWK/%;Ii . A~. Q;V1tkL KATHY BR KS GORDAN, WARD~ ... ... WHEREAS: WHEREAS: WHEREAS: ..... WHEREAS: WHEREAS: WHEREAS: WHEREAS: WHEREAS: ... WHEREAS: THEREFORE: RESOLUTI ON PRESERVE TAX-EXEMPT BONDS FOR STATE AND LOCAL GOVERNMENTS The federal, state and local governments all share in the responsibility of building and maintaining the n a t. ion I s p h Y sic a I and ins tit uti 0 !1 a 1 infrastructure and in providing essential services needed to promote the general welfare, and The federal government has steadi ly reduced its responsibility for infrastructure requirements, and has shifted more and more financial responsibility to states and units of local government, and Shifting the tax burden from the national level to state and local governments is an illusory savings for taxpayers and provides no net tax relief, and Financing state and local government projects through the issuance of bonds the interest on which is not taxed 'by the federal government is critical to allow states and local governments to exercise the responsibilities entrusted to and expected of them, and In recent years, the U. S. Congress has both limited the use of tax-exempt bonds by states and local governments, and made municipal bonds less attractive to significant groups of purchasers, thereby driving up the cost of financing public service projects, and ~ In 1988 the U. S. Supreme Court overturned a 100- year-old precedent, ruling for the first time that the Constitution does not prohibit the federal government from taxing the interest on state and local government bonds, and The Supreme Court decision places in jeopardy the use of tax-exempt bonds by the more than 85,000 units of state and local government, as Congress seeks new sources of revenue to reduce the federal deficit, and State and local borrowing costs wi II increase by an estimated 20 to 30 percent if the interest on tax-exempt bonds is subject to federal income tax, and this added burden will be reflected in reductions in public services or by increased state and local taxes, and Further. restrictions on the! use of tax-exempt bonds will seriously impair the ability of state and local governments to finance essential services and facilities, including schools, roads, water, sewer, gas, electricity, transportation and other basic functions, to the detriment of all citizens, That the Mayor and City Counc il of Smyrna ca II s upon Congress and the President to recognize that the state and local burden of maintaining and expanding the national infrastructure and prOViding citizens with needed basic governmental. serv ices cannot be met wi thout. tax-exempt bonds, and to res i st a II further efforts to reduce the use of such bonds to finance governmenta I projects. 18th day of December, 1989. //~~:d. '- A, Max Bacon, Mayor &o~ .~~ Bob Davis Ward 1 . .' ~ Jack Shinall, Ward 5 fA ~(..- Wade ~n ck , Ward 2 . -- kJi~ _. ~~g~~ ~Q-~6 hn eely, Ward 7 '- r"\ I ~ ...---, .,. ..,' a:\amdlease.con AMENDED AND RESTATED LEASE CONTRACT between DOWNTOWN SMYRNA DEVELOPMENT AUTHORITY and CITY OF SMYRNA Dated as of september 1, 1989 AMENDED AND RESTATED LEASE CONTRACT -., THIS AMENDED AND RESTATED LEASE CONTRACT is entered into as of september 1, 1989, by and between the DOWNTOWN SMYRNA DEVELOPMENT AUTHORITY (the "Authority"), a body corporate and politic and deemed to be a political subdivision and public corporation of the State of Georgia created and existing under the Constitution of the State of Georgia, as Lessor, and the CITY OF SMYRNA (the "Lessee" or the "City"), a political subdivision of the State of Georgia, as Lessee. WIT N E SSE T H: In consideration of the respective representations and contracts hereinafter contained, the Author~ty and the Lessee agree as follows: ARTICLE I. DEFINITIONS .. In addition to the words and terms elsewhere defined in this Amended and Restated Lease Contract, the following words and terms as used in this Amended and Restated Lease Contract shall have the following meanings unless the context or use indicates another or different meaning or intent and such definitions shall be equally applicable to both the singular and plural forms of the words and terms herein defined: '" "Additional BondS" means any of the Authority's revenue bonds ranking on a parity with the Series 1989 Bonds and the Series 1990 Bonds which may hereafter be issued pursuant to the Resolution. "Authority" shall mean the Downtown Smyrna Development Authority, its successors and assigns. "Authority Act" shall mean Georgia Laws 1989, p. 4382 et 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 not previously credited to a Basic Lease Payment. In addition to the foregoing, each Basic Lease Payment shall include the charges as billed specified in subparagraphs (e), (f) and (g) of Section 3, Article V of the original Resolution as broadened and extended by the 1990 Resolution and any deficit in any preceding Basic Lease Payment. w "Bondholder" and "bondholder" means the registered owner of any of the outstanding Bonds. a:\amdlease.con .., "Bonds"- sh~ll mean any revenue bonds authorized by and issued pursuant to the Resolution, including the Series 1989 Bonds, the Series 1990 Bonds and any Additional Bonds of the Authority issued pursuant to the Resolution. "capi tal Improvement Program" shall mean the Smyrna Master Plan, Phase I: Community Center and Library Project No. 88190, dated September, 1989, prepared by the Sizemore Floyd Architects, Atlanta, Georgia for the 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 be designated by appropriate proceedings of the city. "Lease" or "Contract" means this Amended and Restated Lease Contract, as from time to time amended. "Lease Term" shall have the meaning specified in section 4.1 hereof. "Leased Facilities" means the facilities and real property financed with the proceeds of the Series 1989 Bonds, the Series 1990 Bonds and Additional Bonds issued by the Authority; including, without limitation, all real property owned by the Authority and ~ located in Cobb County, Georgia. "1990 Resolution" means that certain bond resolution of the Authority adopted on February ____, 1990 authorizing the issuance of the Series 1990 Bonds. "original Resolution" means that certain bond resolution of the Authority adopted September 5, 1989 authorizing the issuance of the Series 1989 Bonds. "Permitted Encumbrances" means liens and encumbrances existing on the date of acquisition by the Authority of any Leased Facilities, excluding, however, any liens and encumbrances securing any indebtedness for borrowed money. "Permitted Investments" shall mean and include any of the following securities, if and to the extent the same are at the time legal for investment of Authority funds: (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 II A" or better by Moody's Investors Service or Standard & Poor's Corporation; -., a:\amdlease.con -2- ..., (ii) any bonds or other obligations which as to principal and interest constitute direct obligations of, or are unconditionally guaranteed by, the united states of America, including obligations of any of the federal agencies set forth in clause (iii) below to the extent unconditionally guaranteed by the United states of America; (iii) obligations of the Federal National Mortgage Association, the Government National Mortgage Association, the Federal Financing Bank, the Federal Intermediate Credit Banks, Federal Banks for cooperatives, Federal Home Loan Banks, Farmers Home Administration and Federal Home Loan Mortgage Association; '- (iv) negotiable certificates of deposit issued by any bank or trust company organized under the laws of any state of the United states of America or' any national banking association, provided that such certificates of deposit must be purchased directly from such bank, 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. Addi tionally, the bank, trust company or national banking association issuing each such certificate of deposit required to be so secured must furnish the particular fund custodian with an undertaking satisfactory to it that the aggregate market value of all such obligations securing each such certificate of deposit will at all times be an amount equal to the principal amount of each such certificate of deposit; (v) any repurchase agreement with any bank organized under the laws of any state of the United states of America or any national banking association, provided if such bank's or association's principal office is located outside Cobb County, such bank or association either (a) has a long term debt rating by Moody's Investors service 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. .., a:\amdlease.con -3- "proj ect Fund" shall mean the Downtown Smyrna Development Authority Proje~t Fund created in the Resolution. ,..., "project Fund Depository" means initially Smyrna Bank and Trust Co., Smyrna, Georgia, its successors and assigns, or any successor depository for the Project Fund hereafter appointed by the Authority with the approval of the Lessee; provided, however, the proj ect Fund Depository shall at all times be a commercial bank. "Resolution" means that certain bond resolution of the Autho- rity adopted september 5, 1989 authorizing the issuance of the Series 1989 Bonds, as supplemented, ratified, reaffirmed, broadened and extended by that certain resolution of the Authority adopted November 8, 1989, and the 1990 Resolution 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. lit "series 1989 Bonds" means the $6,430,000 aggregate principal amount of the Authority's Revenue Bonds, Series 1989 authorized to be issued pursuant to the Resolution. "series 1990 Bonds" means the $8,690,000 aggregate principal amount of the Authority's Revenue Bonds, Series 1990 authorized to be issued pursuant to the Resolution, including specifically section 1 of the 1990 Resolution. "sinking Fund" shall mean the Downtown Smyrna Development Authority Sinking Fund created in 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. Representations bv the Authoritv. The Author- i ty makes the following representations as the basis for the undertakings on its part herein contained: w a:\amdlease.con -4- ~ (a) The Authority is authorized to enter into the transactions contemplated by this Lease and to carry out its obligations hereunder, has been duly authorized to execute and deliver this Lease, and will do or cause to be done all things necessary to preserve and keep in full force and effect its status and existence; (b) The issuance and sale of the Series 1989 Bonds, the Series 1990 Bonds, the execution and delivery of this Lease, the adoption of the Resolution, and the performance of all covenants and agreements of the Authority contained in this Lease and the Resolution and of all other acts and things required under the Constitution and laws of the State of Georgia to make this Lease a valid and binding obligation of the Authority in accordance with its terms are authorized by law and have been duly authorized by proceedings of the Authority adopted at public meetings thereof duly and lawfully called and held; (c) The Authority has not made, done, executed or suffered, and warrants that it will not make, do, execute or suffer any act or thing whereby its title to and interest in the Leased Facilities will or may be, impaired or encumbered in any manner except as permitted herein and 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 Aqreements bv the Lessee. The Lessee makes the foll~wing 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 w a:\amdlease.con -5- 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; (e) There is no litigation or proceeding pending, or to the knowledge of the Lessee threatened, against the Lessee or any other person having a material adverse affect on the right of the Lessee to execute this Lease or its ability to comply with any of its obligations under this Lease. .. (f) During the Lease Term, the Lessee shall restrict the extent and nature of the use of the Leased Facilities for "private business use" as said term is defined in section 141 of the Internal Revenue Code of 1986, as amended, so as to preserve the exclusion from gross income for federal income taxation purposes applicable to the interest paid on the Bonds. The Lessee will not enter into 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; w (iii) The Lessee (or Authority) has the option to cancel the contract without penalty at the end of any three (3) year period; and a:\amdlease.con -6- ~ - (-\ - (iv) At least fifty percent (50%) of the compensa- tion to th~ concessionaire must be on a fixed fee basis (i.e. the other portion can be on the basis of gross revenue). a:\amdlease.con -7- ARTICLE III. ~ LEASING: ISSUANCE OF BONDS: PROCEEDS; COMMENCEMENT AND COMPLETION OF THE PROJECTS section 3.1. Leasina. The Authority hereby leases to the Lessee, and the Lessee hereby leases from the Authority, the Leased Facilities at the rental set forth in Section 4.3 hereof and in accordance with the provisions of this Lease. The Authority makes no warranties to the Lessee with respect to the Leased Facilities. section 3.2. Aareement to Issue the Series 1989 Bonds and Series 1990 Bonds: Application of Bond Proceeds. The Authority agrees that it will validate and cause to be issued the Series 1989 Bonds, and the Series 1990 Bonds, the proceeds of which shall be applied as provided in the Resolution and the City hereby approves the issuance of the Series 1989 Bonds and the Series 1990 Bonds. \. section 3.3. Pro;ect Fund Monevs. The City and the Authority agree to cooperate with each other and will take such action to the extent reasonably necessary to apply for and/or receive any grants, gifts, or donations to be applied to the cost of additions, extensions and improvements to the Leased Facilities in accordance with the capital Improvement Program or any program or report approved and ratified by the Authority and the City with respect to any issue of Bonds. Any costs and expenses incurred in connection with the issuance and delivery of any Bonds not paid by the purchaser of any Bonds shall be borne by the City and shall be paid for the account of the City. section 3.4. Aareement to ACQUire and Construct the Pro; ects . (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 requisite to undertaking the Capital Improvement Program and the projects described in 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 correcting of any defective work, and the Authority agrees that the Lessee may, from time to time, in its own name, or in the name of the Authority, take or cause to be taken such action as may be necessary or advisable, as determined by the Lessee, to assure that the construction and the installation of such projects will proceed in an efficient and workmanlike manner. Any amounts recovered by way of damages, refunds, adjustments or otherwise in connection with the foregoing shall (i) if Lessee has corrected at its own expense the matter ~ which gave rise to such default or breach, be paid to the Lessee a:\amdlease.con -8- I W -., ,., 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 projects described in 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 public enemy beyond the reasonable control of the Lessee excepted; but if for any reason such acquisition, construction and installation is not completed by any specified date there shall be no resulting liability on the part of the Lessee. All real or tangible personal property acquired from time to time by the Lessee as agent for the Authority in accordance herewith shall" be transferred, by appropriate deed or other instrument, to the Authority subject only to pemritted Encumbrances; and the Authority shall accept title to such proprety which shall consti tute from part of the Leased Facilities. (c) The Lessee shall create on its books and records special accounts for the Project Fund as to any issue of Bonds providing Project Fund moneys, a separate account each of which shall be designated as "Series Capital Improvement Account" (hereinafter referred to as a "capital Improvement Account"). The moneys credited to the Series 1989 capital Improvement Account and Series 1990 Capital Improvement Account shall be used and applied for the purpose of paying the cost of the projects described in the capital Improvement Program and otherwise disbursed as herein provided. The moneys derived from the sal~ of any Additional Bonds' under the Resolution 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: a:\amdlease.con -9- ...., ~ (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 materials, supplies or equipment were actually installed in or about the construction or delivered at the site of the work for that purpose; and .., (e) simultaneously with any payment from the Project Fund with respect to the acquisition of any real property (or interests therein) the city shall cause to be transferred to the Authority such real property (or interests therein), free of any liens and encumbrances and the same shall constitute part of the Leased Facilities. . ~ (f) Tpe City will do or cause to be done all things, and take or cause to be taken all reasonable and prudent measures, necessary to continue construction -with due diligence and to expend the moneys credited to each Capital Improvement Account in the Project Fund as expeditiously as possible in order to assure the completion of the proj ects 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 a: \amdlease. con -10- ,.., 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. 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 Term. This Lease shall become effective as of September 1, 1989 and the leasehold interest created by this Lease shall then begin, and, subj ect to the other provisions of this Lease (including particularly Article VIII hereof), shall expire February 2, 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 made, but in no event in excess of fifty (50) years from the date hereof. section 4.2. Deliverv and Acceptance of possession. The Authority has heretofore delivered and the Lessee has accepted delivery of the Leased Facilities and such delivery and acceptance is hereby ratified and reaffirmed. The Lessee agrees to operate, maintain and insure or cause to be operated, maintained or insured the Leased Facilities on a sound, businesslike basis and to accept delivery of additions to the Leased Facilities as herein contemplated. section 4.3 Basic Lease Payments. ~ a: \amdlease. con -11- w 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, the city shall pay an amount sufficient to pay the principal of and interest on the Bonds coming due on February 1, and if such date is July 15th, the City shall pay an amount sufficient to pay the interest on the Bonds coming due on August 1, and such Basic Lease PaYments shall continue and recontinue until provision has been made for the paYment in full of the Bonds. In addition to the foregoing, each Basic Lease 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 Operatinq Expenses. The City shall payor cause to be paid the reasonable and necessary costs of operating, maintaining and repairing the Leased Facilities, including salaries, wages, employee benefits, the paYment of any contractual obligations incurred pertaining to the operation of the Leased Facilities, cost of materials and supplies, rentals (excluding Basic Lease PaYments) of leased property, real or personal, insurance premiums, audit fees, any incidental expenses of the Authority and such other charges as may properly be made for the purpose of operating, maintaining and repairing the Leased Facilities in accordance with sound business practice. .. Section 4.5. optional Prepayment of Rent: Redemption of -., Bonds. (a) The rent due under Section 4.3 shall be subject to pre- paYment, in whole or in part, for the purpose of calling and redeeming, at the option of the City, all or part of the Bonds in accordance with the provisions of Article III of the Resolution, provided, however, that the funds used to prepay such rent have been deposited to the sinking Fund prior to the giving of notice to redeem by the Bond Registrar (as defined in the Resolution) to the bondholders, and the Lessee shall pay all costs which may be incurred in connection with the call of the Bonds to be redeemed together with any applicable redemption premium. (b) No prepaYment of any amount of rent in accordance with the provisions of the preceding subsection shall relieve the Lessee to any extent from its obligations thereafter to make the full Basic Lease PaYments required by the provisions hereof until all the Bonds issued under the Resolution and the interest thereon and the charges of the Bond Registrar and Paying Agent (as defined in the Resolution) have been paid in full. Upon any prepaYment of rent, as authorized by the preceding subsection, in part, the Bonds to be redeemed shall be called for redemption by lot or in such other manner prescribed by the Resolution. Upon the prepaYment of such rent in whole the amount of such prepayment shall be used to ~ a:\amdlease.con -12- ., .. -., ....., retire all outstanding Bonds in the manner provided in, and subject to, the Resolution. section 4.6. Obliqations of Lessee Hereunder Absolute and Unconditional. The obligation of the Lessee to make the payments required in Section 4.3 hereof and to perform and observe the other agreement on its part contained herein shall be absolute and unconditional. Until such time as the principal of and interest on the Bonds outstanding under the Resolution shall have been paid in full or provision for the payment thereof shall have been made in accordance with the Resolution, the Lessee (i) will not suspend or discontinue any payments provided for in section 4.3 hereof except to the extent the same have been prepaid, (ii) will perform and observe all of its other agreements contained in this Lease, and (iii) except as provided in Article VIII hereof, will not terminate the Lease Term for any cause, including, without limiting the generality of the foregoing, failure of-the AuthQrity's or the City's title in and to the Leased Facilities or any part thereof, failure to acquire, construct or equip all or any part of the real property as contemplated in the Capital Improvements Program, any acts or circumstances that may constitute failure of consideration, eviction or constructive eviction, destruction of or damage to the Leased Facilities, commercial frustration of purpose, any change in the tax or other laws of the United states of America or of the state of Georgia or any political subdivision of either or any failure of the Authority to perform and observe any agreement, whether express or implied, or any duty, liability or obligation arising out of or connected with this Lease or the Resolution. Nothing contained in this Section shall be construed to release the Authority from the performance of any of the agreements on its part herein contained; and if the Authority should fail to perform any such agreement, the Lessee may institute such action against the Authority as the Lessee may deem necessary to compel performance or recover its damages for nonperformance as long as such action shall not do violence to or adversely affect the agreements on the part of the Lessee contained in the preceding sentence and to make the payments specified in section 4.3 hereof; provided, however any liability of the Authority shall be payable solely from rents, revenues and receipts arising from the Authority's interest in the Leased Facilities. The Lessee may, however, at its own cost and expense and in its own name or in the name of the Authority, prosecute or defend any action or proceeding or take any other action involving third persons which the Lessee deems reasonably necessary in order to insure the acquisition and construction of the Leased Facilities or to secure or protect its right of possession, occupancy and use hereunder, and in such event the Authority hereby agrees to cooperate fully with the Lessee and to take all lawful action which is required to effect the substitution of Lessee for the Authority in any such action or proceeding if the Lessee shall so request. section 4.7. Tax Levv to Pay Basic Lease Payments. a:\amdlease.con -13- W' (a) The obligations of the Lessee to make the Basic Lease Payments when due under section 4.3 hereof, and to perform its other obligati6ns hereunder, are absolute and unconditional as herein provided, and the Lessee hereby pledges its full faith and credit to such payment and performance. (b) The Lessee covenants that, in order to make any Basic Lease Payments when due from its general funds to the extent required, it will exercise its power of taxation to the extent necessary to pay any amounts required to be paid hereunder and it will make available and use for such payments all taxes levied and collected for that purpose together with funds received from any other source. The Lessee further covenants and agrees that in order to make funds available for such purpose, it will, in its general revenue, appropriation, and budgetary measures whereby its tax funds or revenues and the allocation thereof are controlled or provided for, include sums sufficient to satisfy any such Basic Lease Payments that may be required to be made from the general funds, whether or not any other sums are included in such measure, until all payments so required to be made shall have been made in full. The obligation of the Lessee to make any payments that may be required to be made from its general funds shall constitute a general 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. (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. 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 Requlations. That it will enforce or cause to be enforced reasonable rules and regulations governing the Leased Facilities and the operation thereof, and that all ~ compensation, salaries, fees and wages paid or caused to be paid a:\amdlease.con -14- .~':- ..." -., w by it in connection with the operation, repair and maintenance of the Leased Facilities will be reasonable, and that no more persons will be employed than are necessary, and that it will operate or cause to be operated same in an efficient and economical manner, and will at all times maintain or cause to be maintained the same in good repair and in sound operating condition, and will make or cause to be made all necessary repairs, renewals and replacements, and that it will comply or cause to be complied with all valid acts, rules, regulations, orders and directions of any legislative, executive, administrative or judicial body applicable to such undertaking and enterprise. section 5.2. Contractinq Procedure. That any contract 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 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 c9mpanies 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 deduct'ibles 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, a:\amdlease.con -15- _T -- W' ...., 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 dispose of the Leased Facilities or any integral part thereof, except it may request the Authority to sell the Leased Facilities, and the Authority shall sell the Leased Facilities if requested by the City, as a whole, or substantially as a whole, if the proceeds of such sale be at least sufficient to provide for the payment of all Bonds secured by this Lease and any interest accrued or to accrue thereon, and that the proceeds of any such sale shall be deposited in trust and applied by the Authority to the extent necessary to purchase or redeem such Bonds. Nothing contained herein, however, shall preclude sale of a part of the Leased Facilities, if the proceeds from such sale are used for other public projects to be owned and operated by the City within the geographic jurisdiction of the Authority, or for extensions and improvements to the Leased Facilities, or deposited with the Sinking Fund Custodian as prepayment of rent due hereunder and applied toward the purchase or redemption of Bonds. Section 5.6. Arbitraqe. The City hereby covenants and agrees that it will not, subsequent to the date of issuance and delivery of any Bonds, intentionally use any portion of the proceeds of any Bonds to acquire higher yielding investments, except as may be otherwise permitted by Section 148 of the Internal Revenue Code of 1986, as amended (the "Code") and that, as directed by the Authority in order to fulfill the Authority's obligations under Article VII, Section 5 of the Original Resolution, as ratified, reaffirmed, broadened and extended by Section 13 of the 1990 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 and the Series 1990 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 the Series 1990 Bonds and will take such action as may be necessary so that the interest on the Series 1989 Bonds and the Series 1990 Bonds will be and will remain excluded from gross income of the owners for federal income a:\amdlease.con -16- ~ ... ...,. tax purposes, including without limitation, compliance with provisions of sections 141-149 of the Code, as applicable. All expenses incurred by the Authority in connection with its obligations under Article VII, Section 5 of the Original Resolution and section 13 of the 1990 Resolution shall be paid by the City. The obligations of the City under this Section 5.6 shall survive termination of this Lease. a:\amdlease.con -17- ARTICLE VI. SPECIAL COVENANTS OF AUTHORITY AND CITY -- section 6.1. No Warrantv of Condition or suitabilitv by the Authoritv. 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. Inspection of the Leased Facilities. 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 perpetual and including the dedication of public highways) and other rights or privileges in the nature of easements with respect to any property included in the Leased Facilities and such grant will be free from the lien or security interest of this Lease and the Resolution or the Lessee may cause to be released existing easements, licenses, rights-of-way and other rights or privileges in the nature of easements, held with respect to any property ~ included in the Leased Facilities with or without consideration. In connection with any such grant or any sale permitted by section 5.5 hereof, the Authority agrees that it shall execute and deliver any instrument nec~ssary or appropriate to confirm and grant or release any such easement, license, right-of-way or other right or privilege or asset. section 6.4. Further Assurances and Corrective Instruments. Recordinas and Filinas. 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, emplpyees or a:\amdlease.con -18- ,- 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. w 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 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 bondholders will not unreasonably withhold their consent to an extension of such time if it is possible to correct such failure and correctiye 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 a:\amdlease.con -19- ,.., Section_7.2(a) and accelerates all rents payable under section 4.3 hereo~ 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 Authority 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; (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 ma~e in accordance with the provisions of the Resolution) , to the Lessee. 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 ... a:\amdlease.con -20- party beneficiaries of all covenants and agreements herein contained. ..., section 7.4. Aqreement to pav Attornevs' Fees and Expenses. 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 and 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 Implied 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. 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 Exercisinq Option to Purchase. The Lessee may exercise its option to purchase hereunder by giving written notice to the Authority of its intention to purchase the Leased Facilities pursuant to the provisions of this Article VIII specifying the time and place of closing and by giving notice to the Authority. At the closing the Authority shall, upon payment of the purchase price hereinabove specified, deliver to the Lessee 'ti. a:\amdlease.con -21- appropriate conveyance instruments transferring all of its right, title and inter~st 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. Bindinq Effect. This Lease shall inure to the benefit of and shall be binding upon the Authority, the Lessee and their respective successors and assigns, subject, however, to the limitations contained in this Lease. section 9.3. Severability. If any provision of this Lease shall be held invalid or unenforceable by any court of competent jurisdiction, such holding shall not invalidate or render unen- forceable any other provision hereof. section 9.4. Amounts Remaininq in Sinkinq Fund. It is agreed by the parties pereto 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. 'III' section 9.5. Amendments. Chanqes 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 Governinq 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 Authority, at the ~ request at any time of the Lessee, shall take all steps that may a:\amdlease.con -22- ... 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. Operatinq 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. 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 attested by their duly authorized officers, all as of the date first above written. THE AUTHORITY: DOWNTOWN SMYRNA DEVELOPMENT AUTHORITY .. ~ (Corporate Seal) By: Chairman Attest: Secretary and Treasurer As to the Authority, signed and sealed in the presence of: witness Notary Public My commission expires: (Notarial Seal) ...,. a:\amdlease.con -23- -- ~ lIlII!!t' THE LESSEE: (Seal) Attest: Clerk As to the Lessee, signed and sealed in the presence of: witness Notary Public My commission expires: (Notarial Seal) a:\amdlease.con CITY OF SMYRNA By: Mayor ... II r--- '- ......------...., ~ r- -- BOND RESOLUTION A RESOLUTION TO PROVIDE FOR THE ISSUANCE OF DOWNTOWN SMYRNA DEVELOPMENT AUTHORITY REVENUE BONDS, SERIES 1990, PURSUANT TO AND IN CONFORMITY WITH A RESOLUTION ADOPTED SEPTEMBER 5, 1989, AS SUPPLEMENTED BY A RESOLUTION ADOPTED NOVEMBER 8, 1989, TO PROVIDE FUNDS TO PAY OR TO BE APPLIED TOWARD THE COST OF THE ACQUISITION, CONSTRUCTION, RENOVATION AND EQUIPPING OF BUILDINGS AND RELATED FACILITIES FOR THE REDEVELOPMENT OF THE DOWNTOWN AREA OF THE CITY OF SMYRNA AND TO PAY EXPENSES NECESSARY TO ACCOMPLISH SAME; TO RATIFY, REAFFIRM AND ADOPT ALL APPLICABLE TERMS, PROVISIONS, COVENANTS AND CONDITIONS OF THE RESOLUTION OF SEPTEMBER 5, 1989; TO APPROVE, AUTHORIZE AND PROVIDE FOR THE EXECUTION OF AN AMENDED AND RESTATED LEASE CONTRACT, DATED AS OF SEPTEMBER 1, 1989, WITH THE CITY OF SMYRNA; TO PROVIDE FOR DEPOSIT OF THE PROCEEDS FROM THE SALE OF THE SERIES 1990 BONDS TO CERTAIN FUNDS PREVIOUSLY CREATED; TO AUTHORIZE AND DIRECT THE EXECUTION OF A CERTIFICATE PERTAINING TO THE PROCEEDS DERIVED FROM THE SALE OF THE SERIES 1990 BONDS; TO DESIGNATE THE SERIES 1990 BONDS AS "QUALIFIED TAX-EXEMPT OBLIGATIONS" WITHIN THE MEANING OF SECTION 265 (B) (3) OF THE INTERNAL REVENUE CODE OF 1986, AS AMENDED; TO AUTHORI ZE THE OFFICERS OF THE AUTHORITY TO MAKE CERTAIN ELECTIONS UNDER THE INTERNAL REVENUE CODE OF 1986, AS AMENDED; TO PROVIDE FOR THE REMEDIES OF THE OWNERS OF THE SERIES 1990 BONDS, AND FOR OTHER PURPOSES: WHEREAS, pursuant to an amendment to Article VII, Section VII, Paragraph I of the Constitution of the State of Georgia of 1945 (Georgia Laws 1970, p. 1117 et seq.) and now specifically continued pursuant to an Act of the General Assembly (Georgia Laws 1986, p. 3957 et seq.) as a part of the Constitution of the State of Georgia of 1986, and under the provisions of Georgia Law? 1989, p. 4382 et seq., known as the "Downtown Smyrna Development Authority Act" there was created a body corporate and politic, designated as the "Downtown Smyrna Development Authority" (hereinafter sometimes referred to as the "Authority") and the Authority is deemed to be a political subdivision of the State of Georgia and a public corporation 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 Authority is authorized to undertake the acquisition, construction, remodeling, altering, renovating, equipping, maintaining, and operating of buildings, both private and public, and the usual and convenient facilities appertaining to such undertakings and extension and improvement of such buildings; the acquisition of parking facilities or parking areas in connection therewith; the construction, reconstruction, alteration, changing and closing of streets, roads, and alleys; the acquisition of the necessary property therefor, both real and personal; and the lease and sale of any part or all of such buildings, including real and personal property, so as to assure the efficient and proper development, maintenance and operation of such buildings, streets, roads and alleys deemed by the Authority to be necessary, convenient or desirable in connection therewith; and - ~ WHEREAS, the City and the Authority, after an investigation and study of the current capital needs and the desirability for the redevelopment of the downtown Smyrna area, have heretofore determined that there is an urgent need for certain capital improvements to be made; and WHEREAS, the City and the Authority have determined that such improvements and other undertakings should be accomplished, in accordance with, or substantially in accordance with, the report entitled Smyrna Master Plan, Phase I: Community Center and Library 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 contemplated is by the issuance and sale of its revenue bonds for such purpose; and .. WHEREAS, to finance a portion of the cost of the undertaking, the Authority has heretofore authorized, pursuant to that certain bond resolution adopted September 5, 1989, as supplemented by a resolution adopted November 8, 1989 (the "Original Resolution") the issuance of, and actually issued and delivered, $6,430,000 principal amount of its Revenue Bonds, Series 1989, dated November 1, 1989 (the "Series 1989 Bonds") in the form of fully registered bonds without coupons, transferable to subsequent owners as therein provided, bearing interest from date at the rate per annum set forth below opposite each principal maturity, all interest payable August 1, 1990 and semi-annually thereafter on the 1st days of February and August in each year, and the principal maturing on the 1st day of February, in t~e years and amounts, as follows: Year Amount Rate Year Amount Rate 1993 $ 50,000 6.25% 2005 $245,000 6.85 % 1994 120,000 6.30 2006 265,000 6.90 1995 125,000 6.35 2007 285,000 7.00 1996 135,000 6.40 2008 305,000 7.00 1997 145,000 6.45 2009 330,000 7.00 1998 150,000 6.50 2010 355,000 7.00 1999 165,000 6.55 2011 380,000 7.125 2000 175,000 6.60 2012 410,000 7.125 2001 185,000 6.65 2013 440,000 7.125 2002 200,000 6.70 2014 470,000 7.125 2003 215,000 6.75 2015 505,000 7.125 2004 230,000 6.80 2016 545,000 7.125 ~ -2- c:\docs\pf\c175865.02\resol and all of said Series 1989 Bonds are now outstanding and said Series 1989 Bonds have as security for the payment thereof and interest thereon certain revenues of the Authority to be received ~ pursuant to the Original Lease (hereinafter defined); and WHEREAS, all of the facilities contemplated by the capital Improvements Program (the "Leased Facilities") to be acquired and constructed by the Authority were leased to the city of Smyrna (the "City") pursuant to a Lease Contract, dated as of September 1, 1989, between the Authority and the City (the "Original Lease") and the City agreed to operate and maintain the Leased Facilities financed with the proceeds of the Series 1989 Bonds and any additional bonds ranking on a parity with the Series 1989 Bonds; and WHEREAS, the original Lease obligates the City to make Basic Lease Payments (hereinafter defined) in an amount sufficient to enable the Authority to pay principal of and interest on the Series 1989 Bonds as same become due and payable and the city has agreed in the original Lease to exercise its power of taxation to the extent necessary to make such Basic Lease Payments and it will make available and use for such Basic Lease Payments all taxes levied and collected for that purpose together with funds received from any other source; and ~ WHEREAS, to finance the undertaking now contemplated the Authority has issued its Series 1989 Bonds and proposes to issue the $8,690,000 principal amount of its Revenue Bonds, Series 1990 (hereinafter sometimes referred to as "Series 1990 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 1990 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 purchaser of said bonds and will provide for the actual issuance and delivery of the bonds to the purchaser upon payment of the agreed purchase price therefor by said purchaser; and WHEREAS , it was provided in Article v, section 4 of the original Resolution that additional revenue bonds or obligations could be issued, from time to time, ranking as to lien on the Basic Lease Payments on a parity with the Series 1989 Bonds, upon meeting certain terms and conditions, which are, in part, as follows: -3- ..., c:\docs\pf\c175865.02\resol -., "(a) None of the Series 1989 Bonds or any Additional Bonds are in default as to principal and interest: the Authority 1S in compliance with the terms and conditions of this resolution: and the City is in compliance with the Lease. (b) The payments covenanted to be made into the sinking Fund must be currently being made in the full amount as required. (c) The Lease shall have been amended to reflect the issuance of the Additional Bonds and the increase in the Basic Lease Payments necessitated thereby. -. (d) The Authority shall pass proper proceedings reciting that all of the above requirements have been met, shall authorize the issuance of the Additional Bonds and shall provide in such proceedings, among others, the date such Additional Bonds shall bear, the rate or rates of interest, maturity dates and redemption provisions, as well as the provisions for registration. The interest on the Additional Bonds of any such issue shall fall due on February 1 and August 1 of each year, and the principal shall mature in installments on February 1, but, as to principal, not necessarily in each year or in equal installments. The proceedings for such Additional Bonds may contain additional covenants with respect to the maintenance and operation of the Leased Facilities and additional restrictions on the issuance of Additional Bonds, which covenants and restrictions shall, so long as, but only so long as, such Additional Bonds remain outstanding be for the benefit of any other Bonds secured by this resolution. Any such proceeding or proceedings shall ratify and reaffirm, by reference, all of the applicable terms, conditions and provisions of this resolution." and WHEREAS, as provided in the Original Resolution, it is now necessary that the original Lease be amended to reflect the issuance of the proposed Series 1990 Bonds and the increase in the Basic Lease Payments necessitated thereby, all as more fully set forth in that certain proposed Amended and Restated Lease Contract, dated as of September 1, 1989 (hereinafter sometimes referred to as "Lease"): and WHEREAS, prior to the actual issuance and delivery of the Series 1990 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 1990 Bonds hereinafter authorized to be issued and to perform various -4- ~ c:\docs\pf\c175865.02\resol -- .., ~ functions with respect to the bonds, including, but not limited to, the authentication of the bonds of this issue by 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 1990 Bonds as same become due and payable; and I WHEREAS, the Authority intends to issue additional revenue bonds to provide funds to construct a new city hall and police and fire station as Phase II of the Smyrna Master Plan 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 and the Series 1990 Bonds hereinafter authorized to be issued. NOW, THEREFORE, BE IT RESOLVED by the Downtown Smyrna Development Authority, and it is hereby resolved by authority of the same, that the Authority enter into that certain Amended and Restated Lease Contract, dated as of september 1, 1989 and said Amended and Restated Lease Contract, having been read and carefully considered, be and the same is hereby approved and the Chairman be and is hereby authorized and directed to execute said Amended and Restated Lease Contract for and on behalf of the Authority and the Secretary and Treasurer be and is hereby authorized and directed to attest same and impress the official seal of the Authority thereon and said Amended and Restated Lease Contract shall be in substantially the form which is on file and of record in the Minute Book of the Authority kept in the office of the Secretary and Treasurer of the Authority, and by this reference thereto, the Amended and Restated Lease Contract is incorporated herein and made a part hereof, subject to such changes, insertions or omission as may be required to accomplish the undertaking contemplated by the parties thereto and as same may be approved by the Chairman and the execution of the Amended and Restated Lease Contract by the officers of the Authority as herein authorized shall be conclusive evidence of such approval. BE IT FURTHER RESOLVED by the authority aforesaid, and it is hereby resolved by the authority of the same, that for the purpose of this resolution the definitions set forth in Article I of the original Resolution shall be and are hereby supplemented and amended effective as of the date of issuance and delivery of the Series 1990 Bonds herein authorized to be issued, as follows: "Additional Bonds" shall mean any revenue bonds of the Authority ranking on a parity with the Series 1989 Bonds and the -5- e:\does\pf\e175865.02\resol series 1990 Bonds which may hereafter be issued pursuant to the Resolution. - .., "Basic Lease Payment" means the aggregate amount equal to the principal of and interest on the Bonds coming due on the next succeeding February 1 and the interest on the Bonds coming due on the next succeeding August 1 in each year; provided, however, the Lessee shall receive a credit against any Basic Lease PaYment to the extent moneys are on depos it in the S inking Fund and not previously credited to a Basic Lease PaYment. In addition to the foregoing, each Basic Lease PaYment shall include the charges as billed specified in subparagraphs (e), (f) and (g), of Section 3, Article V of the original Resolution, as ratified, reaffirmed, broadened and extended in Section 10 of the 1990 Resolution, and any deficit in any preceding Basic Lease PaYment. "Bonds" shall mean any revenue bonds authorized by and issued pursuant to the Resolution, including the outstanding Series 1989 Bonds, the Series 1990 Bonds and any Additional Bonds of the Authority issued pursuant to the Resolution. "Lease" or "contract" means the Amended and Restated Lease Contract, dated as of September 1, 1989, by and between the Authority and the City, as same from time to time may be amended. -., "Leased Facilities" means the facilities and real property financed with the proceeds of the Series 1989 Bonds, the Series 1990 Bonds and Additional Bonds issued by the Authority. "oriqina1 Resolution" means that certain bond resolution of the Authority adopted on September 5, 1989, as supplemented by the resolution adopted on November 8, 1989 authorizing the issuance of the Series 1989 Bonds. "Resolution" means the original Resolution, as ratified, reaffirmed, broadened and extended by the 1990 Resolution, and as same may hereafter be supplemented from time to time. "1990 Resolution" means this bond resolution authorizing the issuance of the Series 1990 Bonds. "Series 1989 Bonds" means the $6,430,000 aggregate principal amount of the Authority's Revenue Bonds, Series 1989 authorized to be issued pursuant to the original Resolution. "Series 1990 Bonds" means the $8,690,000 aggregate principal amount of the Authority'S Revenue Bonds, Series 1990 authorized to be issued pursuant to the 1990 Resolution. -6- ~ c:\docs\pf\c175865.02\resol "Sinkinq Fund" shall mean the Downtown Smyrna Development Authority Sinking Fund created in Article V, Section 1 of the Original Resolution, as ratified, reaffirmed, broadened and ~ extended by the 1990 Resolution. All of the other terms defined in Article I of the Original Resolution, unless the context shall clearly indicate another or different meaning or intent, shall be construed or used and are intended to have the same meaning as set forth therein and same are ratified and reaffirmed and shall apply to the Series 1990 Bonds as if set forth herein verbatim. -- BE IT FURTHER RESOLVED by the Authority aforesaid, and it is hereby resolved by authority of same, as follows: section 1. That all of the applicable terms, provisions and conditions contained in Article V, section 4 of the Original Resolution having been met and complied with and under the authority of the Constitution of the State of Georgia, the Revenue Bond Law and the Authority Act, there be, and there is hereby, authorized to be issued, pursuant to and in conformity with said original Resolution, revenue bonds in the aggregate principal amount of $8,690,000 for the purpose of providing funds to finance, in whole or in part, the cost of acquiring, constructing, renovating and equipping public buildings and structures and related facilities useful or desirable in connection therewith, acquiring parking facilities or areas, making certain street and road improvements deemed necessary or desirable, acquiring the necessary property therefor, both real and personal, capitalizing a portion of the interest accruing on said bonds prior to completion of the undertaking now contemplated and to pay all expenses necessary to accomplish the foregoing, in accordance or substantially in accordance with the Capital Improvement Program as hereinafter provided. The revenue bonds ~hall be designated "Downtown Smyrna Development Authority Revenue Bonds, Series 1990," shall be dated February 1, 1990, shall be in the form of fully registered bonds without coupons, shall be transferable to subsequent owners as hereinafter provided, shall be in the denomination of $5,000 or any integral multiple thereof, shall be numbered from R-1 upwards, shall bear interest from date at such rate or rates not exceeding eight and one-half percent (8 1/2%) per annum in any year, all interest payable August 1, 1990 and semiannually thereafter on the 1st days of February and August in each year, and the principal shall mature (or be subject to mandatory sinking fund redemption) on the 1st day of February, in the years and amounts, as follows: -7- .... c:\docs\pf\c175865.02\resol Year Amount Year Amount Year Amount 1992 $3 0 , .9 0 0 2001 $255,000 2010 $470,000 1993 95,000 2002 275,000 2011 505,000 .... 1994 165,000 2003 290,000 2012 540,000 1995 175,000 2004 315,000 2013 580,000 1996 185,000 2005 335,000 2014 625,000 1997 195,000 2006 360,000 2015 670,000 1998 210,000 2007 385,000 2016 715,000 1999 225,000 2008 410,000 2000 240,000 2009 440,000 ~ ..., The principal of the Series 1990 Bonds shall be payable to the registered owner thereof on the dates specified, unless redeemed prior thereto as hereinafter provided, upon presentation and surrender thereof at the principal corporate trust office of the Paying Agent, and payments of interest on the Series 1990 Bonds shall be made by check or draft payable to the registered owner as shown on the bond registration book of the Authority kept by the Bond Registrar at the close of business on the fifteenth (15th) day of the calendar month next preceding each February 1 and August 1 interest payment date and such interest payments shall be mailed to the registered owner at the address shown on the bond registration book. Both the principal of and interest on the Series 1990 Bonds shall be payable in lawful money of the united States of America. section 2. The Series 1990 Bonds shall be executed on behalf of the Authority by use of the facsimile signature of the Chairman and attested by the facsimile signature of the Secretary and Treasurer of the Authority and a facsimile of the official seal of the Authority shall be imprinted thereon and the Series 1990 Bonds shall be authenticated by the manual signature of a duly authorized officer of the Bond Registrar. The Secretary and Treasurer be, and is hereby, authorized to certify by the use of his facsimile signature as to the authenticity of a true and correct copy of the text of the legal opinion to be rendered by Sutherland, Asbill & Brennan, Bond Counsel, which opinion will be printed on the Series 1990 Bonds. The validation certificate to be printed on the Series 1990 Bonds shall be executed by use of the facsimile signature of the Clerk of the Superior Court of Cobb County and a facsimile of the official seal of such Court shall be imprinted thereon. In case any officer whose signature shall appear on the Series 1990 Bonds shall cease to be such officer before delivery of the Series 1990 Bonds, such signature shall nevertheless be valid and sufficient for all purposes the same as if such officer had remained in office until such delivery. The Series 1990 Bonds, the certificate of authentication and registration, form of assignment and the certificate of validation to be endorsed upon the Series 1990 Bonds, shall be in substantially the following forms, with -8- e:\does\pf\e175865.02\resol w .., -.,. such variations, omissions and insertions as are required or permitted by this resolution: -9- c:\docs\pf\c175865.02\resol No. R- $ ~ UNITED STATES OF AMERICA STATE OF GEORGIA DOWNTOWN SMYRNA DEVELOPMENT AUTHORITY REVENUE BOND, SERIES 1990 BOND DATE: February 1, 1990 MATURITY DATE: INTEREST RATE: CUSIP: FOR VALUE RECEIVED, Downtown Smyrna Development Authority (hereinafter sometimes referred to as the "Authority"), a body corporate and politic created by the Downtown Smyrna Development Authority Act (Georgia Laws 1989, p. 4382 et seg., the "Authority Act") and as such deemed to be a political subdivision of the State of Georgia and a public corporation thereof,-hereby promises to pay solely from the special fund provided therefor, as hereinafter set forth, to or registered assigns, the principal sum of DOLLARS -- in lawful money of the United States of America, on the date specified above, unless redeemed prior thereto as hereinafter pro- vided, upon presentation and surrender hereof at the principal corporate trust office of , Atlanta, Georgia, Paying Agent and Bond Registrar, and to pay to the registered owner hereof solely from the special fund interest on the principal amount from date hereof or from the most recent interest payment date to which interest has been paid, at the rate per annum specified above, on August 1, 1990 and semiannually thereafter on the 1st days of February and August in each year (each an "Interest Payment Date"), until payment of the principal amount hereof. Payments of interest on this bond shall be made by check or draft payable to the registered owner as shown on the bond registration book of the Authority kept by the Bond Registrar at the close of business on the fifteenth day of the calendar month next preceding each Interest Payment Date and such interest payments shall be mailed to such registered owner at the address shown on the bond registration book. This bond is one of a duly authorized issue of Downtown Smyrna Development Authority Revenue Bonds, Series 1990, in the aggregate principal amount of $8,690,000, of like tenor, except as to numbers, denominations, interest rates, dates of maturity and redemption provisions (hereinafter sometimes referred to collectively as the "Series 1990 Bonds"), issued for the purpose -10- w c:\docs\pf\cl75865.02\resol '- ...., -- of providing funds to finance, in whole or in part, the cost of acquiring, constructing, renovating and equipping the Leased Facilities, acquiring the necessary property therefor, both real and personal, to capitalize a portion of the interest accruing on the Series 1990 Bonds prior to completion of the undertaking, and to pay all expenses necessary to accomplish the overall undertaking now contemplated. The Series 1990 Bonds are issued under authority of the Constitution of the State of Georgia, the Revenue Bond Law (Title 36, Chapter 82, Article 3 of the Official Code of Georgia Annotated, as amended) and the Authority Act and were duly authorized by a resolution of the Downtown Smyrna Development Authority adopted on the 5th day of September, 1989, as supplemented by a resolution adopted November 8, 1989 and by a resolution adopted on the day of February, 1990, as supplemented by a resolution adopted February 1990 (hereinafter sometimes referred to collectively as the "Resolutions"). The Series 1990 Bonds rank on a parity as to the lien on the revenues of the Authority derived from that certain Amended and Restated Lease Contract, dated as of September 1, 1989 (the "Lease") by and between the Authority and the city of Smyrna, with the $6,430,000 principal amount of the Authority's Revenue Bonds, Series 1989, heretofore issued pursuant to the resolution of September 5, 1989, as supplemented November 8, 1989 (the "Series 1989 Bonds"). In addition to the Series 1989 Bonds and the Series 1990 Bonds (hereinafter sometimes referred to collectively as the "Bonds") the Authority may issue, under certain terms and conditions as provided in the Resolutions, additional revenue bonds or obligations and if issued such additional bonds or obligations will rank on a parity as to lien on the revenues of the Authority derived under the Lease, with the lien securing the payment of the Bonds. Reference to the Resolutions is hereby made for a complete description of the fund charged with, and pledged to, the payment of the principal of and the interest on the Bonds, the nature and extent of the security therefor, a statement of rights, duties and obligations of the Authority, the rights of the owners of the Bonds, and the terms and provisions under which additional revenue bonds or obligations may be issued, to all the provisions of which the owner hereof, by the acceptance of this bond, assents. The terms and provisions of this bond and definitions of cer- tain terms used herein are continued on the reverse side hereof and such continued terms and provisions and definitions shall for all purposes have the same effect as though fully set forth at this place. This bond shall not be valid or become obligatory for any purpose or be entitled to any security or benefit under the Resolutions until this bond shall have been authenticated and registered upon the bond registration book of the Authority kept for that purpose by the Bond Registrar, which authentication and -11- c:\docs\pf\c175865.02\resol '-' '-' ~ registration shall be evidenced by the execution by the manual signature of a duly authorized officer of the Bond Registrar of the certificate-hereon. IN WITNESS WHEREOF, Downtown Smyrna Development Authority, has caused this bond to be executed by use of the facsimile signature of its Chairman and a facsimile of its official seal to be imprinted hereon and attested by use of the facsimile signature of its Secretary and Treasurer, as of the 1st day of February, 1990. DOWNTOWN SMYRNA DEVELOPMENT AUTHORITY (5 E A L) Attest: By: Chairman Secretary and Treasurer DATE OF AUTHENTICATION AND REGISTRATION: CERTIFICATE OF AUTHENTICATION AND REGISTRATION This bond is one of the Series 1990 Bonds described in the resolution of February , 1990, as supplemented. , as Bond Registrar By: Authorized Officer -12- c:\docs\pf\c175865.02\resol w w w ******** VALIDATION CERTIFICATE STATE OF GEORGIA ) ) COUNTY OF COBB ) The undersigned Clerk of the Superior Court of Cobb County, State of Georgia, HEREBY CERTIFIES that this bond was validated and confirmed by judgment of the Superior Court of Cobb County, Georgia, on the day of February, 1990, and that no intervention or objection was filed in the proceedings validating same and that no appeal from said judgment of validation has been taken. WITNESS my facsimile signature and seal of the Superior Court of Cobb County, Georgia. Clerk, Superior Court, Cobb County, Georgia (S E A L) *********** -13- c:\docs\pf\c175865.02\resol [THE FOLLOWING SHALL BE PRINTED ON THE BACK OF EACH SERIES 1990 BOND] ... This bond is transferable only upon the bond registration book kept for that purpose at the principal corporate trust office of the Bond Registrar by the registered owner hereof in person, or by attorney duly authorized in writing, upon the surrender and presentation to the Bond Registrar of this bond duly endorsed for transfer or accompanied by an assignment duly executed by the registered owner or his attorney duly authorized in writing, and thereupon a new registered bond, in the same aggregate principal amount and of the same maturity, shall be issued to the transferee in exchange therefor. The Series 1990 Bonds are issuable in the form of fully reg- istered bonds in the denomination of $5,000 or any integral mul- tiple thereof and are exchangeable at the principal corporate trust office of the Bond Registrar in the manner, subj ect to the conditions and upon payment of charges, if any, provided in the resolution of February ___, 1990. -., The Authority and City of Smyrna (the "City") have entered into the Lease, under which the Authority has leased the Leased Facilities to the City for a term extending through February 2, 2016 or if at said time and on said date all of the Bonds and any additional bonds issued on a parity therewith have not been paid in full, then on such date as such payment shall have been made, but in no event in excess of fifty (50) years from the date thereof, and in consideration thereof the City has obligated itself to make Basic Lease Payments to the Authority in amounts sufficient to enable the Authority to pay the principal of and interest on the Bonds and any additional bonds or obligations hereafter issued by the Authority on a parity therewith as same become due and payable. Under the terms of the Lease and the Resolutions, the City and the Authority have agreed that the Basic Lease Payments shall be paid by the City directly to the Sinking Fund Custodian designated in the resolution of September 5, 1989 for the account of the Authority and deposited into the special fund created in the resolution of September 5, 1989 and designated "Downtown Smyrna Development Authority Sinking Fund." The revenues of the Authority representing the Basic Lease Payments from the City as provided in said Lease have been pledged under the Resolutions to the payment of the principal of and interest on the Series 1989 Bonds, the Series 1990 Bonds and any parity bonds hereafter issued pursuant to the Resolutions. This bond shall not be deemed to constitute a debt of the State of Georgia or City of Smyrna, nor a pledge of the faith and credit of said State or City, nor shall the State or City be -14- w c:\docs\pf\c175865.02\resol w subject to any pecuniary liability hereon. This bond shall not be payable from nor a charge upon any funds other than the revenues pledged to the - payment hereof, and is payable solely from the special fund provided therefor from the revenues of the Authority derived under the Lease. No owner of this bond shall ever have the right to enforce payment hereof against any property of the Authority, nor shall this bond constitute a charge, lien or encumbrance, legal or equitable, upon any property of the Authority. The issuance of this bond shall not directly, indirectly or contingently obligate said state or said City to levy or to pledge any form of taxation whatever therefor or to make any appropriation for its payment. - The Series 1990 Bonds may be redeemed prior to their respective maturities, either in whole at any time or in part, at the option of the Authority, on any Interest Payment Date in any year, not earlier than February 1, 1999, fr0m any moneys which may be made available for such purpose as provided in the resolution of February ___ ,1990. Such redemption may be made upon payment of the principal amount thereof and accrued interest thereon to date of redemption, together with a premium of two percent (2%) of such principal amount if redeemed on or prior to August 1, 1999; one percent "(1%) of such principal amount if redeemed thereafter and on or prior to August 1, 2000, and at par without a premium if redeemed thereafter and before maturity. If such Series 1990 Bonds are called in part, then any such bonds so called for redemption shall be called in the inverse order of their maturities and if less than a full maturity by lot or in such other manner as may be designated by the Bond Registrar. [PROVISIONS REQUIRING MANDATORY SINKING FUND REDEMPTION, IF APPLICABLE] Notice designating the Series 1990 Bonds (or the portion of the principal amount of the Series 1990 Bonds in multiples of $5,000) to be acquired by redemption, as aforesaid, shall be mailed, postage prepaid, not less than thirty (30) days prior to the redemption date, to all registered owners of the Series 1990 Bonds to be redeemed in whole or in part at the addresses which appear in the bond registration book as of the date of such notice, but failure so to mail any such notice shall not affect the validity of the proceedings for such redemption or cause the interest to accrue on the principal amount of the Series 1990 Bonds so designated for redemption after the redemption date. To the extent and in the manner permitted by the Resolutions, modifications, alterations, amendments, additions and recisions of the provisions of the Resolutions, or of any resolution supple- mental thereto or of the Bonds, may be made by the Authority with the consent of the owners of at least sixty-five per cent (65%) of -15- ,..., c:\docs\pf\c17586S.02\resol the principal amount of the obligations then outstanding, including any parity obligations therewith then outstanding, and without the necessity for notation hereon of reference thereto. w This bond is issued with the intent that the laws of the state of Georgia shall govern its construction. In case of default, the owner of this bond shall be entitled to the remedies provided by the Resolutions and the Revenue Bond Law of the state of Georgia and any amendments thereto and the Authority Act. It is hereby recited and certified that all acts, conditions and things required to be done precedent to and in the issuance of this bond have been done, have happened and have been performed in due and legal form as required by law, and that provision has been made for the allocation from the anticipated revenues of the Authority, of amounts sufficient to pay the principal of and the interest on all of the Bonds as same become due and payable and that such revenues are irrevocably allocated and pledged to the payment thereof and the interest thereon. * * * * ASSIGNMENT FOR VALUE RECEIVED the undersigned hereby sells, assigns and transfers unto please print or typewrite name and address -. [Insert Tax Identification or social Security Number] including postal zip code of assignee the within bond and all rights thereunder, appointing this bond on the bond the Bond Registrar, premises. hereby constituting and attorney to transfer registration books kept for such purpose by with full power of substitution in the DATED signature Guaranteed Notice: This signature to this assignment must correspond with the name as it appears upon the face of the within bond in every particular, without alternation or enlargement or any change whatever. w -16- e:\does\pf\e175865.02\resol sectio~ 3. Only those Series 1990 Bonds which shall have endorsed thereon a certificate of authentication and registration .., substantially in the form hereinbefore set forth, duly executed by the manual signature of an authorized officer of the Bond Registrar shall be entitled to any benefit or security under this resolution and such certificate upon any of such bonds when duly executed shall be conclusive evidence that such bond has been duly authenticated, registered and delivered. It shall not be necessary that the same authorized officer of the Bond Registrar sign the certificate of authentication and registration on all of the Series 1990 Bonds that may be issued hereunder at anyone time. The person in whose name any Series 1990 Bond shall be registered shall be deemed and regarded as the absolute owner thereof for all purposes and the payment of the principal amount, interest and premium, if any, shall be made only to or upon the order of the registered owner thereof. All such payments shall be valid and effectual to satisfy and discharge the liability upon such bond, including redemption premium, if any, and the interest thereon to the extent of the sums so paid. section 4. The Bond Registrar shall keep the bond registration book of the Authority for the registration of the Series 1990 Bonds and for the registration of transfers of the Series 1990 Bonds as herein provided. The transfer of any Series 1990 Bond shall be registered upon the bond registration book upon the surrender and presentation of the Series 1990 Bond to the Bond ~ Registrar duly endorsed for transfer or accompanied by an assignment duly executed by the registered owner or attorney duly authorized in writing in such form as shall be satisfactory to the Bond Registrar. Upon any such registration of transfer, the Bond Registrar shall authenticate and deliver in exchange for such Series 1990 Bond or Series 1990 Bonds so surrendered, a new Series 1990 Bond or Series 1990 Bonds registered in the name of the transferee,' of any denomination or denominations authorized by this resolution, and in an aggregate principal amount equal to the aggregate principal amount of the Series 1990 Bonds so surrendered and of the same maturity. Any Series 1990 Bond, upon presentation and surrender thereof to the Bond Registrar, together with an assignment duly executed by the registered owner or duly authorized attorney, in such form as may be satisfactory to the Bond Registrar, may be exchanged, at the option of the registered owner, for an aggregate principal amount of Series 1990 Bonds of the same maturity equal to the principal amount of the Series 1990 Bond so surrendered and of any authorized denomination or denominations. The Bond Registrar may make a charge for every exchange or registration of transfer of the Series 1990 Bonds sufficient to reimburse it for any tax or other governmental charge required to be paid with respect to such exchange or registration of transfer, but no other charge shall be made to the owner for the privilege -., -17- c:\docs\pf\c175865.02\resol w ...., -- of exchanging or registering the transfer of Series 1990 Bonds under this resolution. section 5. If any of the Series 1990 Bonds shall become mutilated, the Bond Registrar in its discretion and at the expense of the owner of such bond shall authenticate and deliver a new bond of like tenor registered in the name of the owner in exchange and substitution for such mutilated bond. If any bond shall become lost, destroyed or wrongfully taken, evidence of such loss, destruction or wrongful taking within a reasonable time thereafter may be submitted to the Authority and if such evidence shall be satisfactory and indemnity of a character and in an amount satisfactory to the Authority shall be given, then the Authority shall at the expense of the owner cause a new bond of like tenor registered in the name of the owner to be authenticated by the Bond Registrar and delivered to the registered owner. section 6. The Authority shall make all necessary and proper provisions for the transfer and exchange of the series 1990 Bonds by the Bond Registrar and the Authority shall deliver or cause to be delivered to the Bond Registrar a sufficient quantity of blank Series 1990 Bonds duly executed on behalf of the Authority, together with the certificate of validation pertaining thereto duly executed by the Clerk of the Superior Court of Cobb County, as herein provided in order that the Bond Registrar shall at all times be able to register and authenticate the Series 1990 Bonds at the earliest practicable time in accordance with the provisions of this resolution. All Series 1990 Bonds surrendered in any such exchange or registration of transfer shall be forthwith cancelled by the Bond Registrar and a record thereof duly entered in the permanent records pertaining to the Series 1990 Bonds maintained by the Bond Registrar. section 7. The Series 1990 Bonds shall stand on a parity and shall be of equal dignity with the series 1989 Bonds heretofore issued in the principal amount of $6,430,000 pursuant to the Original Resolution, and shall be secured by the lien created on the revenues of the Authority pursuant to the Original Resolution as the same is ratified, reaffirmed, broadened and extended by this resolution, just as if said Series 1989 Bonds and the Series 1990 Bonds had been issued simultaneously under the same resolution. section' 8. The Series 1990 Bonds may be redeemed at the option of the Authority in whole at any time or in part on any interest paYment date with respect thereto in any year not earlier than February 1, 1999, from any moneys which may be available for such purpose and deposited with the Paying Agent on or before the date fixed for redemption. The optional redemption of Series 1990 Bonds shall be made by the paYment of the principal amount of the bonds to be redeemed and accrued interest thereon to date of -18- c:\docs\pf\c175865.02\resol redemption, together with a premium of two percent (2%) of such principal amount if redeemed on or prior to August 1, 1999, one percent (1%) of- such principal amount if redeemed thereafter and '- on or prior to August 1, 2000, and at par without a premium if redeemed thereafter and before maturity. If the Series 1990 Bonds are called for optional redemption in part, then any series 1990 Bonds so called for redemption shall be called in inverse order of their maturities and if less than a full maturity by lot or in such other manner as may be designated by the Bond Registrar. The Series 1990 Bonds may be subject to mandatory sinking fund redemption as may be set forth in the resolution supplementing this resolution. If less than all of the Series 1990 Bonds of a single maturity are to be redeemed, the Bond Registrar shall treat any bond of such maturity outstanding in a denomination of greater than $5,000 principal amount as two or more separate Series 1990 Bonds in the denomination of $5,000 each and shall assign separate numbers to each for the purpose of determining the Series 1990 Bonds or the portion of such Series 1990 Bonds in a denomination greater than $5,000 to be redeemed by lot. wi th respect to any Series 1990 Bond called for partial redemption, the registered owner thereof shall surrender such bond to the Bond Registrar in exchange for one or more Series 1990 Bonds in the denomination of $5,000 principal amount or any integral multiple thereof in the aggregate equal to the unredeemed principal amount of such bond so surrendered. The Bond Registrar shall furnish the Authority on or before the forty- '- fifth (45th) day next preceding each optional redemption date if such option is exercised with its certificate setting forth the Series 1990 Bonds that have been selected for optional redemption, either in whole or in part on such date. Not less than thirty (30) days before any date upon which any such redemption is to be made a notice of redemption signed by a duly authorized officer of the Bond Registrar on behalf of the Authority designating the Series 1990 Bonds to be redeemed (in whole or in part) shall be mailed, postage prepaid, to all registered owners of the Series 1990 Bonds to be redeemed (in whole or in part) at addresses which appear upon the bond registration book as of the date of giving such notice. It is expressly provided, however, that the failure so to mail any such notice of the optional redemption of the Series 1990 Bonds shall not affect the validity of the proceedings for such redemption or cause the interest to continue to accrue on the principal amount of the Series 1990 Bonds so designated for redemption after the redemption date. Nothing herein contained shall be construed to limit the right of the Authority to purchase with any excess moneys in the Sinking Fund (i.e., moneys not needed in the then current Sinking Fund Year to pay principal of and interest on the Series 1989 Bonds, the Series 1990 Bonds or credited against a Basic Lease Payment) and '- -19- c:\docs\pf\c175865.02\resol for sinking fund purposes, the Series 1990 Bonds in the open market at a price not exceeding the callable price. Any such Series 1990 Bonds so purchased cannot be reissued and shall be cancelled. -- Notice having been given in the manner and under the conditions hereinabove. provided, the Series 1990 Bonds so designated for redemption shall, on the redemption date designated in such notice, become and be -due and payable at the redemption price hereinabove specified, and from and after the date of redemption so designated, unless default shall be made in the payment of the Series 1990 Bonds so designated for redemption, interest on the Series 1990 Bonds so designated for redemption shall cease to accrue after the redemption date. section 9. From the proceeds derived from the sale of the Series 1990 Bonds, including accrued interest to date of delivery, the following payments shall be made, simultaneously with the issuance and delivery of said Series 1990 Bonds, to the extent and in the manner herein set forth: (a) The accrued interest received on the Series 1990 Bonds and capitalized interest shall be deposited into the sinking Fund to be used and applied toward the payment of the interest on the Series 1990 Bonds coming due on August 1, 1990. w (b) Such amount of the proceeds as may be necessary shall be retained by the original purchaser of the Series 1990 Bonds and used and applied by it at the direction of the Authority to the payment of costs and expenses of the undertaking herein contemplated and any surplus remaining after the payment of such expenses shall be deposited into the Project Fund. (c) The balance of the proceeds so received shall be deposited into the Project Fund hereinafter described. Smyrna Bank and Trust Co., Smyrna, Georgia, is hereby redesignated as Project Fund Depository for the proceeds from the sale of the Series 1990 Bonds. The moneys so deposited into the Project Fund shall be held, maintained, invested and disbursed as provided in Article IV, sections 2 through 4, inclusive, of the Original Resolution, and in accordance with the terms and conditions set forth in the Lease, and said terms and conditions of the Original Resolution are hereby declared applicable to the Series 1990 Bonds and for the purpose of making same applicable, the Authority does hereby reaffirm and adopt verbatim herein, except that said Article is broadened and extended to provide for the improvements in accordance or '-' -20- c:\docs\pf\c175865.02\resol substantially in accordance with the capital Improvement Program and otherwise as required by this resolution and the Lease. .. section 10. The Authority covenants that it will continue to maintain the special fund designated as "Downtown Smyrna Development Authority Sinking Fund" created in Section 1 of Article V of said Original Resolution. The Sinking Fund shall be kept as a separate trust account with the sinking Fund custodian separate from other deposits of the Authority. All Basic Lease PaYments shall be deposited into the sinking Fund for the purpose of paying the principal of and interest on the Bonds as same become due and payable, either at maturity or by proceedings for mandatory redemption, and the other charges permitted to be paid pursuant to section 3 of Article V of said Original Resolution, as same is ratified, reaffirmed, broadened and extended by this resolution. w As provided in section 2 of Article V of the Original Resolution, the Basic Lease PaYments received by the Authority immediately become subject to a lien to secure the paYment by the Authority of the debt service on the Bonds and all amounts therein and herein agreed to be paid and the Authority hereby ratifies and reaffirms the pledge of such revenues and hereby covenants and agrees that the revenues received by it shall in like manner be and are hereby pledged to secure the paYment by the Authority of the amounts herein agreed to be paid and the lien of this pledge shall be valid and binding against it and against all parties having claims of any kind against it, whether such claims shall have arisen in contract, tort or otherwise and irrespective of whether or not such parties have notice hereof. Smyrna Bank and Trust Co., Smyrna, Georgia, is hereby redesignated as Sinking Fund Custodian and shall maintain and hold the sinking Fund in trust for the owners of the Series 1989 Bonds and the Series 1990 Bonds pursuant to the provisions of the original Resolution as hereby ratified, reaffirmed, broadened and extended. Section 11. The Authority covenants and agrees that it will not exercise the privilege provided in Article V, Section 4 of the Original Resolution, of issuing Additional Bonds ranking as to lien on the Basic Lease Payments or the Lease on a parity with the Series 1989 Bonds and the Series 1990 Bonds, unless or until all of the following conditions are met: (a) None of the Series 1989 Bonds, the Series 1990 Bonds or any Additional Bonds are in default as to principal and interest; the Authority is in compliance with the terms and conditions of the Original Resolution, as same has been .... -21- c:\docs\pf\c175865.02\resol ratified, reaffirmed, broadened and extended by this resolution] and the city is in compliance with the Lease. .., (b) The paYments covenanted to be made into the Sinking Fund must be currently being made in the full amount as required. (c) The Lease shall have been amended to reflect the issuance of Additional Bonds and the increase in the Basic Lease PaYment necessitated thereby. 'W (d) The Authority shall pass proper proceedings reciting that all of the above requirements have been met, shall authorize the issuance of the Additional Bonds and shall provide in such proceedings, among others, the date such Additional Bonds shall bear, the rate or rates of interest, maturity dates and redemption provis'ions, as well as the provisions for registration. The interest on the Additional Bonds of any such issue shall fall due on February 1 and August 1 of each year, and the principal shall mature in installments on February 1, but, as to principal, not necessarily in each year or in equal installments. The proceedings for such Additional Bonds may contain additional covenants with respect to the maintenance and operation of the Leased Facilities and additional restrictions on the issuance of Additional Bonds, which covenants and restrictions shall, so long as, but only so long as, such Additional Bonds remain outstanding be for the benefit of any other Bonds secured by the Resolution. Any such proceeding or proceedings shall ratify and reaffirm, by reference, all of the applicable terms, conditions and provisions of the Resolution. (e) The Authority shall furnish the City with a duly certified copy of the resolution authorizing the issuance of such Additional Bonds and the City, acting by and through its Mayor and Council, sh~ll acknowledge receipt of the certified copy of said resolution and retain same in its permanent records. (f) Such Additional Bonds and all proceedings relative thereto, and the security therefor, shall be validated as prescribed by law. section 12. All of the terms, covenants, conditions and provisions of Article V of the original Resolution not herein specifically referred to are hereby declared applicable to and are broadened and extended so as to cover the Series 1990 Bonds and any future issue or issues of parity bonds therewith and are hereby ratified and reaffirmed and are hereby adopted and shall for all purposes apply to the Series 1990 Bonds as if said bonds had been -- -22- c:\docs\pf\cl75865.02\resol - originally issued under authority of the Original Resolution simultaneously with the Series 1989 Bonds. section 13. The Authority hereby covenants and agrees that it will not, subsequent to the date of the issuance and delivery of the series 1990 Bonds, intentionally use any portions of the proceeds of the Series 1990 Bonds to acquire higher yielding investments, or to replace funds which were used directly or indirectly to acquire higher yielding investments, except as may otherwise be permitted by section 148 of the Internal Revenue Code of 1986, as amended (the MCodeM) or the regulations promulgated thereunder, including, but not limited to, complying with the requirements of section 148 (f) of the Code and the regulations promulgated thereunder and the payment of rebate, if any, required to be made, and that it will expend the proceeds of the Series 1990 Bonds in compliance with the applicable provisions of section 141 to 149, inclusive, of the Code. section 14. The Chairman and Secretary and Treasurer of the Authority are authorized and directed to execute, for and on behalf of the Downtown Smyrna Development Authority, a certification based upon facts, estimates and circumstances, as to the reasonable expectations regarding the amount, expenditure and use of the proceeds of the Series 1990 Bonds, as well as such other documents (inClUding, without limitation, elections under Section 148 of the Code) as may be necessary or advisable in connection with the -. issuance and delivery of the Series 1990 Bonds. Section 15. All of the applicable terms, covenants, conditions and provisions of Article VI, Article VII, Article VIII and Article IX and each Section and covenant thereof of the Original Resolution not herein specifically referred to are hereby declared applicable and are broadened and extended so as to cover the Series 1990 Bonds issued hereunder and are hereby ratified and reaffirmed as so extended and said terms, covenants, conditions and provisions shall apply, for all purposes, to the Series 1990 Bonds as if said bonds had been originally issued under the authority of the original ReSOlution, simultaneously with the Series 1989 Bonds. Section 16. The Authority does hereby approve and accept the terms of the Amended and Restated Lease Contract, dated as of september 1, 1989, entered into between it and the City, and agrees to take all action from time to time as may be necessary to effectively carry out the purpose and intention covered by the overall undertaking. Section 17. The Authority does hereby designate the $8,690,000 Downtown Smyrna Development Authority Revenue Bonds, Series 1990, dated February 1, 1990, being issued and delivered -- -23- c:\doca\pf\cl7S86S.02\reaol .., -., ,.., pursuant to this resolution as .qualified tax-exempt obligations. within the meaning of section 265(b) (3) of the Code. section 18. The Chairman and the Secretary and Treasurer of the Authority are hereby authorized and directed to execute, for and on behalf of the Authority, such other agreements, certificates or documents as may be necessary in connection with the issuance, sale and delivery of the Series 1990 Bonds. Section 19. The Authority, after the Series 1990 Bonds have actually been sold, shall adopt a resolution supplementing this resolution and will specify in said supplemental resolution the interest rate or rates per annum which the Series 1990 Bonds shall bear, will designate the Bond Registrar and Paying Agent for the Series 1990 Bonds, will provide for mandatory sinking fund redemption if requested by the original purchaser of the Series 1990 Bonds and will provide for the actual sale, issuance, and delivery of the Series 1990 Bonds upon payment therefor by the purchaser thereof. A copy of said supplemental resolution duly certified to by the Secretary and Treasurer of the Authority shall be promptly delivered to the City and the receipt of said supplemental resolution shall be acknowledged by the Mayor and council of the City of Smyrna. Section 20. The provisions of this resolution shall constitute a contract by and between the Authority, the City and the owners of the Series 1989 Bonds and the Series 1990 Bonds authorized to be issued hereunder and the owners of any Additional Bonds subsequently issued by the Authority, and after the issuance of the Series 1990 Bonds, this resolution shall not be repealed or amended in any respect which will adversely affect the rights and interest of the owners of the bonds of any of said issues, nor shall the Authority pass any proceedings in any way adversely affecting the rights of such owners or issuers, so long as any of the bonds authorized by the Original Resolution and this resolution, or the interest thereon, shall remain unpaid; provided, however, that this covenant shall not be construed as prohibiting modifications hereof or amendments hereto to the extent and in the manner as provided in Article IX of the Original Resolution, as ratified, reaffirmed, broadened and extended by this resolution. Any subsequent proceedings authorizing the issuance of Additional Bonds issued by the Authority as provided in the Resolution shall in nowise conflict with the terms and conditions of the Resolution, but shall, for all legal purposes, reaffirm all of the applicable covenants, agreements and provisions of the Resolution for the equal protection and benefit of all bondholders. Section 21. The Series 1990 Bonds herein authorized shall be validated in the manner provided by law, and to that end notice of -24- c:\doc.\pf\c17S86S.02\r..ol . . the adoption of this resolution and a copy thereof shall be served upon the District Attorney of the Cobb Judicial Circuit, in order -., that proceedings for the above purpose be instituted in the Superior Court of Cobb County. section 22. Any and all resolutions or parts of resolutions in conflict with this resolution this day adopted be and the same are hereby repealed, and this resolution shall be in full force and effect from and after its adoption. -., .... -25- c.\doc.\pf\c175865.02\r..ol " 'O'~ 8038.G Information Return for Tax-Exempt Governmental Bond Issues . Under Section 149(e) (Use Form 8038.GC if issue price is under SlOO.OOO.) CiMS No 1545.0720 Expires 12-31-89 (Oecembp.r 1986) Department of the Treasury l"lternai Revenue Service 1 issuer s name Check box If Amended Return .. 2 Issuer's employer Identification number 58-6000664 .., City of Smyrna 3 Number and street P.O. Box 1226 4 RepOrt number G19S 9 1 6 Date of Issue June 28, 1989 5 City or town. state. and ZIP code Smyrna, Georgia 30081 ImII Type of Issue (check box(es) that applies) ,..., 7 Check box If bonds are tax or other revenue anticipation bonds" U 8 Check box If bonds are In the form of a lease or Installment sale.. [J 9 0 Education 10 C Health and hospital 11 0 Transportation 12 [J Public safety . 13 29 Environment (including sewage bonds) 14 0 Housing 15 0 Utilities 16 0 Other. Describe (see instructions).. Issue Price $3,510,000 tion of Bonds (e) Enter the remaining weighted average maturity of the bonds to be refunded Enter the last date on which the refunded bonds will be called Enter the date s the refunded bonds were Issued .. 10-24-84 Miscellaneous 28 Enter the amount (if any) of the state volume cap allocated to this Issue .. None 29 Arbitrage rebate: a Check box if the small governmental unit exception to the arbitrage rebate reqUirement applies. l!l b Check box if the 6.month temporary investment exception to the arbitrage rebate requirement IS expected to apply 0 c Check box if you expect to earn and rebate arbitrage profits to the US. 0 30 Enter the amount of the bonds designated by the Issuer under section 265(b)(3)(B)(ii) .. $ 3.510.000 31 Pooled financlngs: a Check box If any of the proceeds of this Issue are to be used to make loans to other governmental units" 0 and enter the amount .. b Check box If this issue IS a loan made from the proceeds of another tax-exempt issue .. 0 and enter the name of the Issuer .. and the date of the issue .. 19 $ 18,103.31 20 $ 100,500.00 21 $ 23,500.00 22 $ -0- 23 $3 386,000.00 24 $ -0- .. 11.714 years .. 7-1-95 Please Sign WHere Under penalties they are true. C I . ~ S'g'nature of officer examined thiS return and accompanYing SChedules and statements. and to the best of my knowledge and beltef, June 28 Date 1989~Mayor, City of Smyrna. Georqia ~Tltle For Paperwork Reduction Act Notice. ,ee pale 1 of the Instructions. Form 8038.G (12-86) *U.L ........_..1,....1.... Off", 1117-1.1_7....... ~ w ~ -- City of Smyrna (return to P 432 556 935 Alice RECEIPT FOR CERTIFIED MAlttabry) ~ " - -.. -' ,.: .. ~.., -.l.,.l :....~;. ~-.r...:~ .. r---- .~ ~ ~er.nal~ R.euenua. Servi~e ~ ;Irtternal Rev Serv Center ~ ~ ----- --~ --. ~- -. -- ~ .~hiladelphia, PA (j i " ~, 19255 LS 85 [J ;:> (Xl .:1 ~" :.,'~ t'\~' ~- ":'....., I -~. ~ ' ,..-;; ; - ; -.- -'-. ~- ----- ; ,. . i l ,.. ~ y , , ,-' '. ~ -, - , .QO ~ <: :l , ..., ',.' d,COj \ . 0' 0' ~, E o ... Vl :L ! ," . .. ItImI I WherUddhlonel~1t....~""'.c~--s"''' Put yovr.......tM "RETURN TO" .... on ..~.., 1feIIu,. _do thll......- cent train bIInt........... to you. 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