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HomeMy Public PortalAboutGEFA RIGHT OF ENTRY 2015.pdfRIGHT OF ENTRY AGREEMENT (LICENSE) 0 HIS AGREEMENT ("Agreement"), made and entered into this t* -1 day of , 2015, by and between CITY OF TYBEE ISLAND, GEORGIA (hereinafter referred to as "Licensor"); and the STATE OF GEORGIA, acting by and through the GEORGIA EVIRONMENTAL FINANCE AUTHORITY, (hereinafter referred to as "Licensee"). WHEREAS, Licensor is the owner of a certain tracts of real property located in Chatham County, Georgia associated with its public works facility and wastewater treatment plant, being more particularly described as all that property identified in Exhibit A, , and the owner of certain real property located in Chatham County, Georgia associated with the abandoned post -aeration basin and its existing 18' ocean outfall, being more particularly described as all that property identified in Exhibit B. The properties and equipment identified in Exhibits A and B are hereinafter referred to collectively as "Premises". WHEREAS, as part of the Governor's Water Supply Program and consistent with the Intergovernmental Agreement between the parties dated November 13, 2014, Licensee desires to, or to have its Agents (as hereinafter defined), enter upon the Premises and conduct activities deemed necessary by the Licensee for the project known and designated as Project No. GEFA-SDI2014-02 "Test of Deep Aquifer Production for Abatement of Saltwater Intrusion". Licensee's activities will include surveying, construction, installation, operation, maintenance and testing of a well and related underground and above -ground water, piping, drilling and utility installations for the purposes of accessing, withdrawing and testing underground water on the Premises (collectively hereinafter referred to as the "Authorized Activities"). The Authorized Activities include all activities outlined site plan approved by the Licensor's city council on June 11, 2015, and in the technical specifications and drawings submitted to the Licensor and its engineers on July 29, 2015, which may be supplemented and changed when technically necessary to successfully install and test the Cretaceous aquifer well. WHEREAS, Licensor has agreed to grant to Licensee and Licensee has agreed to accept from Licensor a license in accordance with the terms and conditions herein below. WHEREAS, this Agreement is short-term in nature and does not limit the Licensee's rights in the long-term utility easement that it holds in the Premises. NOW, THEREFORE, for and in consideration of ONE DOLLAR AND 00/CENTS ($1.00) in hand paid, and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, and of the mutual covenants and agreements contained in this Agreement, the parties do hereby agree as follows: 1. GRANTING OF LICENSE. Licensor hereby grants to Licensee and Licensee hereby accepts from Licensor, a license to enter the Premises for the Authorized Activities (the "License"). 2. USE OF LICENSED PREMISES. Licensee shall use the Premises for the sole purpose of conducting the Authorized Activities on the Premises. Licensee shall have the right to enter upon the Premises and conduct the Authorized Activities from time to time during the Term of this License as defined in Section 4. The red lines shown on Exhibit A are the planned limits of construction. The Licensee will use the License granted herein in compliance with all applicable laws, ordinances, regulations, and rules of governmental authorities. Licensor also acknowledges that this License extends not only to the Licensee, its employees and officers, but also to the Licensee's independent contractors and consultants (said contractors and consultants are hereinafter collectively referred to as the "Agents"). 3. ENTRY UPON THE PREMISES. Licensee and its Agents may enter the Premises beginning on the Commencement Date as defined in Section 4. Licensee and its Agents shall coordinate with Licensor frequently to limit to the greatest extent practicable any impacts on Licensor's operations, Licensee and its Agents shall use commercially reasonable efforts to assure that their entrance upon the Premises does not materially interfere with Licensor's use of the Premises. 4. DURATION. The term of this License shall commence upon the execution of this Agreement (hereinafter "Commencement Date") and shall terminate automatically as of December 31, 2017 (hereinafter "Termination Date"). Said Commencement Date and the Termination Date are hereinafter collectively referred to as the "Term". 5. INTEREST. By making, executing and delivering this Agreement, Licensor does not confer upon Licensee any right, title, interest, or estate in the Premises, nor confer upon Licensee a license coupled with an interest or an easement. Notwithstanding the foregoing, this Agreement does not limit the Licensee's rights or interests in the long-term utility easement that it holds in the Premises. 6. AGENTS AND LIABILITY. Licensee will cause its Agents to assume liability for loss or damages that may be experienced by Licensor as a result of the Agents' activities on the Premises. Licensee will require its Agents who are performing construction and drilling activities to take out such insurance policies and provided indemnification to Licensor on terms substantially equivalent to those identified in Exhibit C. Licensee's liability hereunder is limited by the laws of the State of Georgia including, but not limited to, Title 50, Chapter 21 of the Official Code of Georgia Annotated entitled "Waiver Of Sovereign Immunity As To Actions Ex Contractu; State Tort Claims". 7. 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: 2 (a) If to the Licensee: Georgia Environmental Finance Authority 233 Peachtree Street, Suite 900 Atlanta, GA 30303 Attn: Water Supply Senior Program Manager Phone: 404-584-1055 (b) if to the Licensor: Manager, City of Tybee Island Post Office Box 2740 Tybee Island, Georgia 31328 The Licensee and the Licensor may, by like notice, designate any further or different addresses to which subsequent notices will be sent. Notices will be effective upon receipt_ 8. 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. 9. Georgia Agreement. This Agreement will be governed by, construed under, performed and enforced in accordance with the laws of the State of Georgia. 10. Counterparts. This Agreement is executed in two (2) counterparts 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. Off" PM 11. 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. 12. 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. 13. Entire Agreement. This Agreement constitutes the entire Agreement between the Parties. No member, officer, employee or agent of the Licensee or the Licensor has the 3 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 Licensee and the Licensor and incorporated in and by reference made a part hereof. 14. Exhibits. All Exhibits attached to this Agreement are made a part of and incorporated by reference into this Agreement. IN WITNESS WHEREOF, the Licensee, acting for and on behalf of the Department and as the authorized agent of the Department, and the Licensor, by their respective officers authorized so to do, have executed this Agreement as of the Effective Date. LICENSEE: Approved as to form: GEORGIA ENVIRONMENTAL FINANCE AUTHORITY, as authorized agent of the DEPARTMENT OF COMMUNITY AFFAIRS By: Name: -Vtd. C1.zV Title: t ce t 167, LICENSOR: CITY OF TYBEE ISLAND, GEORGIA By: Name: icx,.4 Title: /1'11,o( 4 nab M . 9B'LO,1 o9 N .95'SZ,IOL Zf Exhibit B Abandoned Post -Aeration Basin and Existing 18" Ocean Outfall # 1- Cretaceous Well # 2 — Pump Test Flow Monitoring # 3 — Post Aeration Basin # 3A — Dissolved Oxygen and pH Monitoring 6ocation #4 - WPCP Parshall Flume and NPDES Compliance Sampling Location #5 - Flow Blending and Temperature Monitoring Location #6 - Existing 18" Outfall Pipe 6 Exhibit C Insurance and Indemnity Requirements Construction Contract to include language substantially similar to the following: PART 5 — BONDS, INDEMNITY, AND INSURANCE 1.5.1 Bonds 1.5.1.1 Performance Bond and Payment Bond. The Contractor shall furnish both a performance bond and a payment bond in the exact form set forth in Section 7, (Forms) of these General Requirements. 1.5.1.2 Required Qualifications for Surety. The Contract provides that the surety and insurance companies must be acceptable to the Owner. Only those sureties listed in the Department of Treasury's Listing of Approved Sureties (Department Circular 570) are acceptable to the Owner. All bonds at the time of issuance must be issued by a company authorized by the Insurance Commissioner to transact the business of suretyship in the State of Georgia, and shall have a Best Policyholders Rating of "A-" or better and with a financial size rating of Class V or larger. 1.5.1.3 Penal Amount of Bonds, State Law. The Contractor acknowledges and agrees that, pursuant to O.C.G.A. §§13-10-2, 13-10-20, 13-10-40 and 13-10-60, the performance bond and the payment bond must be in a penal amount equal to at least 100% of the Contract Sum. Accordingly, the Contractor warrants and agrees that, for any Change Order increasing the Contract Sum by five percent or more or when the total costof the work has increased by five percent or more, it shall obtain a written amendment to the payment bond and the performance bond increasing the penal amounts of both bonds to 100% of the Contract Sum, effective as of the date of the Change Order. The premium increase, if any, may be properly included in the cost of the Change Order. The Design Professional shall approve no payment for the work provided by the Change Order until the Contractor has provided the written amendment to the Owner. 1.5.2 Liability and Indemnification. 1.5.2.1 General Liability. The Contractor shall be responsible to the Owner and City of Tybee from the time of the signing of the agreement or the beginning of the first work, whichever shall be earlier, for all injury or damage of any kind resulting from any negligent act or omission or breach, failure or other default regarding the Work by the Contractor, or any of its Subcontractors, its agents, employees or others working at the direction of the Contractor or on its behalf, regardless of who may be the owner of the property. 1.5.2.2 Indemnification Agreement. Contractor hereby agrees to indemnify, defend and hold harmless the Owner, the State of Georgia, City of Tybee and each of their departments, agencies and instrumentalities and all of their respective officers, members, employees and directors (hereinafter collectively referred to as the "Indemnitees") from and against any and all claims, demands, liabilities, losses, costs or expenses, including attorneys' fees, due to liability to a third party or parties, for any loss due to bodily injury (including death), personal injury, and property damage arising out of or resulting from the performance of this Contract or any act or omission on the part of the Contractor, its agents, employees or others working at the direction of Contractor or on its behalf., or due to any breach of this Contract by the Contractor, or due to the application or violation of any pertinent Federal, State or local law, rule, regulation or permit. This indemnification extends to the successors and assigns of the Contractor. This indemnification obligation survives the termination of the Contract and the dissolution or, to the extent allowed by law, the bankruptcy of the Contractor. If and to the extent such damage or loss (including costs and expenses) as covered by this indemnification is paid by the State Tort Claims Trust Fund, the State Authority Liability Trust Fund, the State Employee Broad Form Liability Fund, the State Insurance and Hazard Reserve Fund, and other self -insured funds (ail such funds hereinafter collectively referred to as the "Funds") established and maintained by the State of Georgia Department of Administrative Services Risk Management Division (hereinafter "DOAS") the Contractor agrees to 7 reimburse the Funds for such monies paid out by the Funds. This indemnification does not extend beyond the scope of this Contract and the work undertaken thereunder. Nor does this indemnification extend to claims for loses or injuries or damages incurred due to the sole negligence of the Indemnitees. 1.5.2.3. DOAS Role. DOAS Risk Management Division serves as Owner's insurer. Risk Management will endeavor to notify affected insurers of claims made against the State that fall within this indemnity. In the event of litigation, the Attorney General will endeavor to keep the Contractor and its general liability insurer as named on the insurance certificate informed regarding the claims and settlement. 1.5.2.4 Suits or Claims for Infringement. The Contractor shall indemnify and hold the Owner and City of Tybee harmless from any suits or claims of infringement of any patent rights or copyrights arising out of any patented or copyrighted materials, methods, or systems used by the Contractor. 1.5.3 Insurance Requirements. 1.5.3.1 Insurance Certificates. The Contractor shall procure the insurance coverages identified below at the Contractor's expense (e.g. within the bid price and Contract Sum) and shall furnish the Owner an insurance certificate listing the Owner and Tybee as the certificate holder and as an additional insured. The insurance certificate must provide the following: (a) Name and address of authorized agent (b) Name and address of insured (c) Name of insurance company(ies) (d) Description, of policies (e) Policy Number(s) (f) Policy Period(s) (g) Limits of liability (h) Name and address of Owner as certificate holder (i) Project Name and Number (j) Signature of authorized agent P (k) Telephone number of authorized agent (I) Mandatory thirty day notice of cancellation or non -renewal (except ten days for non payment). 1 1.5.3.2 Insurer Qualifications, Insurance Requirements. Each of the insurance coverages required below (1) shall be issued by a company licensed by the Insurance Commissioner to transact the business of insurance in the State of Georgia for the applicable line of insurance, and (ii) shall be an insurer (or, for qualified self -insureds or group self insureds, a specific excess insurer providing statutory limits) with a Best Policyholders Rating of "A-" or better and with a financial size rating of Class V or larger. Each such policy shall contain the following provisions: s -411W VW 1.5.3.2.1 The insurance company agrees that the policy shall not It canceled, changed, allowed to lapse or allowed to expire until thirty days after the Owner has received written notice thereof, as evidenced by return receipt of certified mail, or until such time as other insurance coverage providing protection equal to protection called for in this Contract shall have been received, accepted and acknowledged by the Owner. Such notice shall be valid only as to the Project as shall have been designated by Project Number and Name in said notice. 1.5.3.2.2 The policy shall not be subject to invalidation as to any insured by reason of any act or omission of another insured or any of its officers, employees, agents or other representatives ("Separation of Insureds"). 1.5.3.2.3 Each Insurer is hereby notified that the statutory requirement that the Attorney General of Georgia shall represent and defend the Indemnities remains in full force and effect and is not waived by issuance of any policy of insurance. In the event of litigation, any settlement on behalf of the indemnities must be expressly approved by the Attorney General. The Contractor and its insurance carrier may retain, but are not obligated to retain, counsel to assist 8 with the defense of the Indemnities, in which case there will be mutual cooperation between the Attorney General and such counsel. See O.C.G.A. § 45-15-12. 1.5.3.2.4 All deductibles shall be paid for by the Contractor. 1.5.3.2.5 The maximum deductible, except for Worker's Compensation qualified self -insurers or group self -insurers, in any policy shall not exceed $100,000.00. 1.5.3.3 Required Insurance Coverages. The Contractor also agrees to purchase insurance and have the authorized agent state on the insurance certificate that the Contractor has purchased the following types of insurance coverages, consistent with the policies and requirements of O.C.G.A. §50-21-37. The minimum required coverages and liability limits are as follows: 1.5.3.3.1 Workers' Compensation Insurance. The Contractor agrees to provide at a minimum Workers' Compensation coverage in accordance with the statutory limits as established by the General Assembly of the State of Georgia. A group insurer must submit a certificate of authority from the Insurance Commissioner approving the group insurance plan. A self -insurer must submit a certificate from the Georgia Board of Workers' Compensation stating the Contractor qualifies to pay its own workers' compensation claims. The Contractor shall require all Subcontractors performing work under this Contract to obtain an insurance certificate showing proof of Workers' Compensation Coverage and shall submit a certificate on; the letterhead of the Contractor in the following language: This is to certify that all Subcontractors performing work on this Project are covered by their own workers" compensation insurance or are covered by the Contractor's workers compensation insurance. 1.5.3.3.2 Employers' Liability Insurance. The Contractor shall also maintain Employer's Liability Insurance Coverage with limits of at least: (i) Bodily Injury by Accident - $1 ,000,000 each accident; (ii) Bodily Injury by Disease - $1,000,000 each employee; The Contractor shall require all Subcontractors performing work under this Contract to obtain an insurance certificate showing proof of Employers Liability Insurance Coverage and shall submit a certificate on the letterhead of the Contractor in the following language: This is to certify that all Subcontractors performing work on this Project are covered by their own Employers Liability Insurance Coverage or are covered by the Contractor's Employers Liability Insurance Coverage. 1.5.3.3.3 Commercial General Liability Insurance. The Contractor shall provide Commercial General Liability Insurance (2004 ISO Occurrence Form or equivalent) that shall include, but need not be limited to, coverage for bodily injury and property damage arising from premises and operations liability, products and completed operations liability. blasting and explosion, collapse of structures, underground damage, personal injury liability and contractual liability. The CGL policy must include separate aggregate limits per Project and shall provide at a minimum the following limits: Coverage 1. Premises and Operations 2. Products and Completed Operations 3. Personal lnjury 4. Contractual 5. General Aggregate Limit $ 1,000,000.00 per Occurrence $ 1,000,000.00 per Occurrence $ 1,000,000.00 per Occurrence $ 1,000,000.00 per Occurrence $ 2,000,000.00 per Project Additional Requirements for Commercial General Liability Insurance are shown below at Paragraph 1.5.3.3.6. 9 1.5.3.3.4 Commercial Business Automobile Liability Insurance. The Contractor shall provide Commercial Business Automobile Liability Insurance that shall include coverage for bodily injury and property damage arising from the operation of any owned, non -owned, or hired automobile. The Commercial Business Automobile Liability Insurance Policy shall provide not less than $1,000,000 Combined Single Limits for each occurrence. Additional Requirements for Commercial Business Automobile Liability Insurance are shown below at Paragraph 1.5.3.3.6. 1.5.3.3.5 Commercial Umbrella Liability Insurance. The Contractor shall provide a Commercial Umbrella Liability Insurance to provide excess coverage above the Commercial General Liability, Commercial Business Automobile Liability and the Workers' Compensation and Employers' Liability to satisfy the minimum limits set forth herein. The umbrella coverage shall follow form with the Umbrella limits required as follows: $ 2,000,000 per Occurrence 7 $ 4,000,000 Aggregate Additional Requirements for Commercial Umbrella Liability Insurance are shown below at Paragraph 1.5.3.3.6. 1.5.3.3.6 Additional Requirements for Commercial Policies in Paragraphs 1.5.3.3.3 through 1.5.3.3.5 (a) The Contractor shall cause its insurer to issue an Additional Insured Endorsement naming the officers, members and employees of the Owner and the City of Tybee Island as additional insureds. (b) The policy must be on an "occurrence' basis. 1.5.3.3.7 Builders Risk Insurance. Contractor shall provide a Builder's Risk Policy to be made payable to the Owner and Contractor, as their Interests may appear. The policy amount should be equal to 100% of the Contract Sum, written on a Builder's Risk "All Risk", or its equivalent. The policy shall be endorsed as follows: The following may occur without diminishing, changing, altering or otherwise affecting the coverage and protection afforded the insured under this policy: (i) Furniture and equipment may be delivered to the insured premises and installed in place ready for use; and • (ii) Partial or complete utilization by Owner; and w (iii) Performance of work in connection with construction operations insured by the Owner, by agents or lessees or other Contractors of the Owner. !n the event that the Contract is for renovation, addition or modification of an existing structure and Builders Risk Insurance is not available, the Owner will accept an Installation Floater Insurance Policy with the above endorsements in lieu of the Builders' Risk Insurance Policy. Such floater must insure loss to materials and equipment prior to acceptance by Owner and must be on an ALL RISK BASIS with the policy written on a specific job site. 1.5.3.3.8 Disposition of Insurance Documents. One original certificate of insurance with all endorsements attached must be deposited with Owner for each insurance policy required. 1.5.3.4 Termination of Obligation to Insure. Unless otherwise expressly provided to the contrary, the obligation to insure as provided herein shall not terminate until the Design Professional shall have executed the Certificate of Material Completion. 1.5.3.5 Failure of Insurers. The Contractor is responsible for any delay resulting from the failure of his insurance carriers to furnish proof of proper coverage in the prescribed form. 10 Nathan Deal Governor GEORGIA ENVIRONMENTAL FINANCE AUTHORITY November 10, 2015 Janet LeViner, CMC Clerk of Council City of Tybee Island PO Box 2749 Tybee Island, GA 31328 Re: Fully Executed Right of Entry Agreement Dear Ms. LeViner: Please find enclosed a fully executed copy of the Right of Entry Agreement for your files. Sincerely, Andrew D. Morris Senior Program Manager Enclosure Kevin Clark Executive Director 233 PEACHTREE STREET NE • HARRIS TOWER, SUITE 900 • ATLANTA, GEORGIA 30303-1506 • 404-584-1000 • FAx 404-584-1069 www.gefa.org