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HomeMy Public PortalAboutGEFA- Intergovernmental Agreement 11-13-14 (fully executed) INTERGOVERNMENTAL AGREEMENT This Intergovernmental Agreement (this "Agreement") is made this /3 day of , 2014 (the "Effective Date") by and between the Georgia Environmental Finance Authority, a public corporation and instrumentality of the State of Georgia ("the Authority") and the City of Tybee Island, Georgia, a municipal corporation ("City") (each a "Party" and collectively the "Parties"). WHEREAS, on January 25, 2011, Governor Nathan Deal issued an Executive Order ("Executive Order") directing the Authority to develop and implement the Governor's Water Supply Program for development of new sources of water supply adequate to meet future water demand forecasts; and WHEREAS, pursuant to the Executive Order, the Authority established a Water Supply Task Force to provide the Authority with expert guidance in developing the Governor's Water Supply Program and to foster interagency cooperation in implementation of the Governor's Water Supply Program; and WHEREAS, State of Georgia general obligation bond proceeds (the "Bond Proceeds") have been made available through the Georgia Department of Community Affairs, a department and agency of the State of Georgia (the "Department") for the purpose of funding water supply projects; and WHEREAS, consistent with the legislative findings set forth in O.C.G.A. § 50-8-3(a) and the Georgia Water Supply Act of 2008 (the "Water Supply Act"), coordination between the Department and the Authority in the implementation of the Governor's Water Supply Program serves the essential public interest in, and the purpose of, developing Georgia water supply projects; and WHEREAS, the Board of Community Affairs has appointed the Authority as the sole and exclusive agent of the Department and the State of Georgia for the purpose of (a) acquiring, purchasing, utilizing, managing and transferring real property and other assets, or interests therein, for and in connection with water supply projects under the Governor's Water Supply Program and(b) for the purpose of administering the Bond Proceeds; and WHEREAS, the Authority is authorized and empowered by the Water Supply Act to "make and execute contracts, lease agreements, and all other instruments necessary to exercise the powers of [the Authority] . . . , such contracts, leases or instruments to include contracts for construction, operation, management, or maintenance of projects and facilities owned by . . . the state" (O.C.G.A. § 12-5-473(4)); and WHEREAS, the Authority further is authorized and empowered by the Water Supply Act and by the Georgia Environmental Finance Authority Act at O.C.G.A.50-23-1 et seq. (the "GEFA Act") to (a) "make all contracts and to execute all instruments necessary or convenient to its services, purposes, duties, responsibilities, or functions," (b) to "contract with state agencies . . . for the use by [the Authority] of any property or facilities . . . of the state or any 6380685v2 such state agency" and (c) to cooperate and act in conjunction with . . . state and local governments" (O.C.G.A. §§ 12-5-473 (2),(7),(8),(10); O.C.G.A. §50-23-5(b)(18)(19)); and WHEREAS, pursuant to the Water Supply Act and the GEFA Act, state agencies and local governments are authorized and empowered to enter into contracts with the Authority (a) for the use of any property or facilities of the State of Georgia or any such state agency and (b) for the use by local governments of any facilities or services of the Authority (O.C.G.A. §12-5- 473(8); O.C.G.A. §50-23-5(b) (19)); and WHEREAS, pursuant to the Water Supply Act and the GEFA Act, state agencies and local governments are authorized and empowered to cooperate and act in conjunction with, and to enter into contracts or agreements with, the Authority to achieve or further the policies of the State as declared in the Water Supply Act (O.C.G.A. §12-5-473(10); O.C.G.A. §50-23- 5(b)(24)); and WHEREAS, pursuant to Section 1.13(6)(18) of its Charter, the City is authorized and empowered to "enter into contracts and agreements with other governmental entities" and "to acquire, dispose of, lease, and hold in trust or otherwise any real, personal, or mixed property, in fee simple or lesser interest"; and WHEREAS, the Authority proposes to design, construct and install on land or property owned or used by the City, a certain water supply project known and designated as Project No. GEFA-SDI2014-02 "Test of Deep Aquifer Production for Abatement of Saltwater Intrusion, Tybee Island, Georgia" (the "Project"); and WHEREAS, the Authority and the City have found and agreed that the Project will further the public purposes of the Governor's Water Supply Program and the Water Supply Act; and WHEREAS, pursuant to Article IX, Section III, Paragraph I (a) of the Constitution of the State of Georgia, the Authority and the City are authorized to contract with each other for a period not exceeding fifty years for joint services, for the provision of services, or for the provision or separate use of facilities or equipment, provided that such contract deals with activities, services or facilities which the contracting parties are authorized by law to undertake or to provide. NOW, THEREFORE, for and in consideration of the premises, the public benefit and the public purposes furthered by the Project and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the Authority and the City do hereby agree to the following terms and conditions of this Agreement for the purpose of facilitating the acquisition, installation and construction of the Project for the benefit of the City and the Authority and in furtherance of their public purposes. 1. Term. The term of this Agreement ("Term") will begin on the Effective Date and will end at 5:00 o'clock p.m., prevailing legal time in Atlanta, Georgia fifty (50) years from the Effective Date. If at any time during the Term, the Project is terminated or cancelled, 6380685v2 unreasonably delayed, or determined not to be environmentally or financially feasible, either Party to this Agreement may terminate this Agreement on thirty (30) days prior written notice to the other Party. 2. Selection of Project Site. The Authority shall have access to land and property owned or used by the City for the purpose of selecting and designating the appropriate site location for the Project (the "Project Site"). The Authority shall select the Project Site with the cooperation, advice, assistance and approval of the City. The City shall at all times have access to the Project Site and may conduct activities on the Project Site; provided, however, that such activities do not hamper or interfere with the Authority's selection and acquisition of an easement in and to the Project Site or the installation and construction of the Project. 3. Authority Contractors or Consultants. The City acknowledges and agrees that the Authority may designate private independent contractors or consultants to the Authority (collectively "consultants") to perform, or assist with the performance of, any and all duties and obligations of the Authority with respect to the Project and the selection and acquisition of an easement in and to the Project Site. All such consultants shall have access to, and use of the Project and the Project Site to the same extent and subject to the same limitations and restrictions as the Authority. 4. Acquisition of Project Site; Grant of Easement. Provided that the Authority has selected and designated the Project Site with the City's approval and subject to the Authority's satisfaction with due diligence results, the Authority shall undertake all actions necessary for the acquisition by the State of Georgia of an easement in and to the Project Site, including furnishing all information and performing all services required by the State Properties Commission. Upon ten (10) days' written notice to the City, the City shall grant to the State of Georgia a perpetual utility easement ("Utility Easement") in and to the Project Site for the purpose of installing and constructing the Project, including the performance and permitting of well testing services. The Utility Easement shall be substantially in the form attached as Exhibit A and shall be granted to the State of Georgia without any fee, charge or cost to the State of Georgia or to the Authority and for and in consideration of the mutual public benefit and the mutual public purposes furthered by the Project. 5. Site Preparation. The Parties acknowledge that the Project Site and Utility Easement may include land that (a) the City uses for storage or disposal of equipment, shipping containers, concrete, trash cans, plastic drums and other debris and materials and (b) has actively growing trees and other plants ((a) and (b) collectively, the "Potential Impediments"). Following the acquisition of the Utility Easement and further discussions regarding the selected Project Site, the Parties shall identify the Potential Impediments. If there are Potential Impediments that the City otherwise has no plans to remove but for construction of the Project and that cannot remain in place during construction of the Project ("Actual Impediments"), the Authority will reimburse the City for its actual cost of removing such Actual Impediments, and site preparation related to said Actual Impediments, up to the cumulative amount of$75,000.00. The City shall take reasonable steps to minimize these costs and submit supporting documentation to the Authority along with its requests for reimbursement. The City agrees to complete the removal of all Actual Impediments from the Project Site to the Authority's reasonable satisfaction by no 6380685v2 later than June 30, 2015. The Authority's agreement to reimburse the City is limited to removal of Actual Impediments and related site preparation only. 6. Design, Installation and Construction of the Project. The Authority will undertake the design, installation and construction of the Project, including related well testing services, in compliance with all laws, ordinances, regulations and rules of appropriate governmental authorities. Prior to commencement of construction on the project, the City will provide the Authority with access and staging areas as required by the Authority during the pre-construction, construction and testing phases of the project. The Authority agrees that it will timely have satisfied or bonded over, or cause to have timely satisfied or bonded over, any mechanics, laborers or other construction liens to be asserted against the Project Site or the Project. 7. License of Project to the City. Upon installation and construction of the Project and completion of related well testing services, the Authority will license the Project to the City pursuant to a license agreement (the "License Agreement") in foini and substance satisfactory to the Parties. Pursuant to the License Agreement, the City will operate and maintain all aspects of the Project, including without limitation the well, pumps, distribution system, and any water treatment equipment associated with the Project. Pursuant to the License Agreement, the City will be authorized to transmit and treat the water and to enter into agreements to provide water- related services to third parties, including the sale of water. 8. Representations and Warranties. The City represents and warrants that it has the authority to enter into this Agreement and to perform its covenants and obligations as set forth herein. The City further represents and warrants that it is compliant with all applicable laws and regulations, including without limitation all applicable laws regarding procurement for professional services and eligibility for State of Georgia funding. 9. Notices. All notices, demands, requests and other communications hereunder will be deemed sufficient and properly given if in writing and delivered in person to the following addresses or received by certified or registered mail, postage prepaid with return receipt requested, or via overnight delivery, at such addresses: (a) If to the Authority: Georgia Environmental Finance Authority 233 Peachtree Street, Suite 900 Atlanta, GA 30303 Attn: Water Supply Senior Program Manager (b) If to the City: Manager, City of Tybee Island Post Office Box 2740 Tybee Island, Georgia 31328 6380685v2 The Authority and the City may, by like notice, designate any further or different addresses to which subsequent notices will be sent. Notices will be effective upon receipt. 10. Binding Effect. Each of the terms and conditions of this Agreement will apply, extend to, be binding upon, and inure to the benefit or detriment of the Parties hereto and their respective successors and permitted assigns. Subject to the foregoing, whenever a reference to the Parties hereto is made, such reference will be deemed to include the successors and assigns of said Party, the same as if in each case expressed. 11. Georgia Agreement. This Agreement will be governed by, construed under, performed and enforced in accordance with the laws of the State of Georgia. 12. Counterparts. This Agreement is executed in two (2) counterparts which are separately numbered but each of which is deemed an original of equal dignity with the other and which is deemed one and the same instrument as the other. 13. Third Party Beneficiaries. Nothing in this Agreement, whether express or implied, is intended to confer upon any other party other than the Parties hereto and their respective successors and assigns, any right or interest whatsoever. No party other than the Parties hereto is entitled to rely in any way upon the representations, obligations, indemnities or limitations of liability whatsoever in this Agreement. 14. Severability. If any provision of this Agreement, or any portion thereof, should be ruled void, invalid, unenforceable or contrary to public policy by any court of competent jurisdiction, then any remaining portion of such provision and all other provisions of this Agreement will survive and be applied, and any invalid or unenforceable portion will be construed or reformed to preserve as much of the original words, terms, purpose and intent as will be permitted by law. 15. Assignment Prohibited. Except as specifically provided by this Agreement, the City will not transfer or assign this Agreement or any right or privilege of the City hereto without the prior written consent of the Authority. Any transfer or assignment requiring the consent of the Authority and made without the consent of the Authority will be void ab initio. Consent by the Authority to a transfer or assignment will not constitute a waiver of this provision, and each subsequent transfer or assignment requiring the consent of the Authority will likewise be made only with the prior written consent of the Authority. 16. Entire Agreement. This Agreement constitutes the entire Agreement between the Parties. No member, officer, employee or agent of the Authority or the City has the authority to make, or has made, any statement, agreement, representation or contemporaneous agreement, oral or written, in connection herewith amending, supplementing, modifying, adding to, deleting from, or changing the terms and conditions of this Agreement. No modification of or amendment to this Agreement will be binding on either Party hereto unless such modification or amendment will be properly authorized, in writing, properly signed by both the Authority and the City and incorporated in and by reference made a part hereof. 6380685v2 17. Exhibits. All Exhibits attached to this Agreement are made a part of and incorporated by reference into this Agreement. IN WITNESS WHEREOF, the Authority, acting for and on behalf of the Department and as the authorized agent of the Department, and the City, by their respective officers authorized so to do, have executed this Agreement as of the Effective Date. GEORGIA ENVIRONMENTAL FINANCE AUTHORITY, as authorized agent of the DEPARTMENT OF COMMUNITY AFFAIRS By: 1.Q Name: vuct. Gc.,ALL(L Title: C4we.42 tt13 CITY OF TYBEE ISLAND, GEORGIA By: vt Name: ��•a uc�—<�r,0. Title: Approved as to form: Edward M. Hughes, City Attorney 6380685v2 Exhibit A [see attached] After recording please return to: Kevin Clark Executive Director Georgia Environmental Finance Authority 233 Peachtree Street, N.E. Harris Tower, Suite 900 Atlanta,Georgia 30303 STATE OF GEORGIA COUNTY OF CHATHAM: UTILITY EASEMENT KNOW ALL PERSONS BY THESE PRESENTS, that as of the day of ,2014,the undersigned CITY OF TYBEE ISLAND,GEORGIA,a municipal corporation ("Grantor"), whole address is , for and in consideration of TEN DOLLARS($10.00)and other good and valuable consideration,the receipt and sufficiency of which are hereby acknowledged, does hereby grant unto the STATE OF GEORGIA, acting by and through the State Properties Commission,whose address is 47 Trinity Avenue, Suite G02, Atlanta, Georgia 30334 ("Grantee"), a perpetual and exclusive (subject to limitations below)right,privilege and easement("Easement")in,to,across,over,upon,under and through the lands of Grantor located in Land Lot(s) of the District and Section of County, Georgia ("Land") being more particularly described on Exhibit "A", attached hereto and by this reference incorporated herein and made a part hereof, for the acquisition, installation and testing of a well and related underground and above-ground utility installations("Installations"),for the purposes of accessing and withdrawing underground water, together with the right of entry into and upon the Land for the purpose of effecting the foregoing rights,privileges and easements. Grantee's rights, privileges and easements shall be exercised on the following terms and conditions: I. The Installations shall be maintained within the portion of the Easement shown and described as the"Proposed Well"on Exhibit"A". Without cost, fee or charge to Grantee, Grantor further shall provide access to and from the Proposed Well as shown and described as the `Access and Utility Easement"on Exhibit"A". ?. Grantee shall have the right to cut away and keep clear,remove and dispose of all trees and undergrowth and to remove and dispose of all structures and obstructions now on the Easement or that may hereafter be placed on the Easement by Grantor or any other person or entity. 3, Grantee shall have the right to conduct testing activities and scientific or other studies,including but not limited to environmental, geotechnical, and archaeological studies on or below the Easement. 4. Grantee may allow and permit use of the Easement by contractors, subcontractors and consultants of Grantee for the purposes specified herein. 5. The Easement granted herein is exclusive,with the following limitations: The surface of the Land area may be used by Grantor, its successors and assigns, for any use not inconsistent with the rights granted to Grantee herein and as may be approved in writing by Grantee; provided that the subsurface is not penetrated to a depth greater than one foot below the surface. Without limitation of the foregoing,no grading(cut or fill)may be done on or to the surface of the Easement, without written approval of Grantee. The terms and conditions hereof shall be binding upon, and inure to the benefit of the successors and assigns of Grantee and Grantor. TO HAVE AND TO HOLD said Easement perpetually unto Grantee, its successors and assigns,the right,powers and interests herein granted,which shall be a covenant running with the title to the Land,but subject always to the covenants herein set forth. IN WITNESS WHEREOF, Grantor has executed and delivered this Easement under seal as of the day and year first above written. [signatures on following pages] GRANTOR: CITY OF TYBEE ISLAND By: Name: Title: Signed,sealed and delivered as to Grantor this day of in the presence of Unofficial Witness Official Witness,Notary Public My Commission Expires: (Notary public seal affixed here) GRANTEE STATE OF GEORGIA Acting by and through the State Properties Commission By: GOVERNOR NATHAN DEAL as Chairman of the State Properties Corr—lission Attest: (Seal) NAME: Title: State Properties Commission Signed. sealed and delivered as to the State Properties Commission in the presence of (Great Seal of the State of Georgia Affixed Here) Unofficial \\fitness (Commission Seal Affixed Here) Official Witness, Notary Public My Commission expires: (Notary public seal affixed here)