HomeMy WebLinkAboutRIGHT OF WAY MOWING AND MAINENANCE AGREEMENT AGREEMENT BETWEEN THE GEORGIA DEPARTMENT OF TRANSPORTATION AND AUGUSTA GARev: May 21, 2010
RIGHT OF WAY MOWING AND MAINTENANCE AGREEMENT
By and Between
THE
GEORGIA DEPARTMENT OF TRANSPORTATION
AND
Augusta- Georgia
THIS AGREEMENT made and entered into this day of , 20/)
by and between the DEPARTMENT of Transportation, an agency of the State of Georgia,
hereinafter alternately referred to as "DEPARTMENT" or "LICENSOR ", and the
APPLICANT hereinafter referred to as "LICENSEE ".
WHEREAS, the DEPARTMENT desires to enter into a public /private partnership to
perform certain services relating to mowing and maintenance within DEPARTMENT'S right
of way, hereinafter called the "PROJECT ", and
WHEREAS, the LICENSEE has represented to the DEPARTMENT that, if such
permission is granted to the LICENSEE, LICENSEE shall bear all costs and liability associated
with the PROJECT; and
WHEREAS, the LICENSEE has represented to the DEPARTMENT that they are
qualified and experienced to provide such services and the DEPARTMENT has relied upon
such representations;
NOW, THEREFORE, for and in consideration of the mutual promises and covenants as
herein contained, it is agreed by and between the parties hereto that:
ARTICLE I
SCOPE OF PROJECT
The DEPARTMENT shall permit the LICENSEE to perform or cause to be performed,
the PROJECT consisting of certain services related to maintaining an identified section of the
DEPARTMENT'S rights of way.
This permission shall be granted by the means of this Agreement for the entire scope of
the PROJECT, as set forth herein.
The maintenance duties and responsibilities of the LICENSEE are defined and set forth
in Article XI — MAINTENANCE WORK PLAN of this Agreement, and further enumerated
and described in Exhibit `A' — Application and Permit for Special Encroachment with approved
drawings or final working drawings for a Department- approved construction PROJECT.
Exhibit `A' is attached hereto and incorporated by reference as if fully set out herein. The
PROJECT location shall be defined or delineated as part of Exhibit `A'. The required Special
Encroachment Permit and /or the construction PROJECT final working drawings are to be
approved or issued by the DEPARTMENT.
Should the LICENSEE desire that these maintenance services be performed by a third
party, LICENSEE and the third party shall enter into subsequent agreement, whereby the
LICENSEE shall assume all responsibility of repayment to the third party for those services to
be rendered as set forth in Article XI - MAINTENANCE WORK PLAN. The Agreement
between LICENSEE and any third parties to this Agreement, shall meet all operational and
administrative requirements, including the provisions of liability insurance, set forth by the
DEPARTMENT, and all liability associated with the PROJECT shall be borne by LICENSEE
and any third parties, as set forth in Article VIII, herein.
ARTICLE II
EXECUTION OF CONTRACT AND AUTHORIZATION
TIME OF PERFORMANCE
Time is of the essence in this agreement. The LICENSEE shall execute this Agreement
and return it to the DEPARTMENT within thirty (30) days after receipt of contract forms from
the DEPARTMENT.
The LICENSEE shall begin work on the PROJECT under this Agreement immediately
after receiving a signed and executed copy of the Agreement (unless noted otherwise in Exhibit
A or upon PROJECT construction completion).
Subject to the terms and conditions set forth in this Agreement, and upon execution of
this Agreement, the DEPARTMENT grants the right to the LICENSEE to mow, edge, and
maintain, as set forth in Article XI- MAINTENANCE WORK PLAN, that specific section of
right -of -way identified in this Agreement, and herein defined as the PROJECT.
The duration of this Agreement shall be for fifty years from the date above first written
unless terminated sooner by the DEPARTMENT or LICENSEE.
ARTICLE III
SUBSTANTIAL CHANGES
If, prior to the satisfactory completion of the services under this Agreement, any party
materially alters the scope, character or complexity of the services from those required under the
Agreement, a Supplemental Agreement shall be executed between the parties. It is understood,
however, that LICENSEE shall not engage in any activities or conduct any work which would
be considered to be outside the scope of the permission granted to LICENSEE by the
DEPARTMENT. Minor changes in the work which do not involve increased compensation,
extensions of time or changes in the goals and objectives of the work may be made by written
notification of such change by any party with written approval by the other parties.
ARTICLE IV
ASSIGNMENT
It is understood by the LICENSEE that the work is considered personal and, except as
provided for in Article I, LICENSEE agrees not to assign, sublet or transfer any or all of their
interest in this Agreement without prior written approval of the DEPARTMENT.
ARTICLE V
CONTRACT DISPUTES
This Agreement shall be deemed to have been executed in Fulton County, Georgia,
without reference to its choice of law doctrine, and all questions of interpretation and
construction shall be governed by the laws of the State of Georgia. Any litigation arising out of
this contract shall be commenced within the State of Georgia. The foregoing provisions shall not
be construed as waiving any immunity to suit or liability, including without limitation, sovereign
immunity which may be available to the Department.
ARTICLE VI
INSURANCE
Prior to beginning work, the LICENSEE shall obtain and certify to the DEPARTMENT
that it has the following minimum amounts of insurance coverage:
(a) Workmen's Compensation Insurance in accordance with the laws of the State of
Georgia.
(b) Public Liability Insurance in an amount of not less than one hundred thousand
dollars ($100,000) for injuries, including those resulting in death to any one person, and in an
amount of not less than three hundred thousand dollars ($300,000) on an account of any one
occurrence, or proof of self insurance.
(c) Property Damage Insurance in an amount of not less than fifty thousand dollars
($50,000) from damages on account of any occurrence, with an aggregate limit of one hundred
thousand dollars ($100,000), or proof of self insurance.
(d) Valuable Papers Insurance in an amount sufficient to assure the restoration of any
plans, drawings, field notes, or other similar data relating to the work covered by the PROJECT.
(e) Insurance shall be maintained in full force and effect during the life of the
PROJECT.
The LICENSEE shall furnish upon request to the DEPARTMENT, certificates of
insurance evidencing such coverage. These certificates shall also provide that the insurance will
not be modified or canceled without a 30 day prior written notice to the DEPARTMENT.
Failure by the LICENSEE to procure and maintain the insurance as set forth above shall be
considered a default and cause for teiniination of this Agreement and forfeiture of the
Performance and Payment Bonds. The LICENSEE shall, at least fifteen (15) days prior to the
expiration date or dates of expiring policies, deposit certified copies of renewal, or new policies,
or other acceptable evidence of insurance with the DEPARTMENT.
ARTICLE VII
COMPENSATION
It is agreed that LICENSEE shall conduct all work at no cost to the DEPARTMENT,
and without compensation from the DEPARTMENT. It is further agreed that any and all issues
relating to compensation and payment shall be resolved by and between LICENSEE and any
successors, subcontractors, or assigns thereto.
The DEPARTMENT and LICENSEE further agree that, should the DEPARTMENT
be required to conduct any inspections and /or supervision of the PROJECT beyond that which
would normally occur in the ordinary course of the DEPARTMENT'S maintenance activities,
LICENSEE shall reimburse the DEPARTMENT for such inspection and supervision. The rate
of reimbursement for the DEPARTMENT'S inspection and supervision shall in no case exceed
a rate determined to be reasonable by the parties.
Should LICENSEE and the DEPARTMENT desire to change this agreement at a later
date to provide for compensation to LICENSEE, or any successors or assigns thereto, such
change shall only be permitted by a supplemental agreement as set forth in Article III herein.
Any supplemental agreements involving compensation shall be subject to the DEPARTMENT
review and approval.
ARTICLE VIII
RESPONSIBILITY FOR CLAIMS AND LIABILITY
LICENSEE NOT AGENT OF DEPARTMENT
LICENSEE, and all successors and assigns thereto, shall save harmless the
DEPARTMENT, its officers, agents, and employees from all suits, claims, actions or damages
of any nature whatsoever resulting from the performance of work assigned to LICENSEE under
this Agreement. LICENSEE further agrees that they shall be fully responsible for injury or
damage to landscaping, landscape related items, and any other non - standard and decorative
elements installed by or for the LICENSEE within the right of way, and for any damage to the
DEPARTMENT'S signs, structures, or roadway fixtures, if LICENSEE causes the damage.
These indemnities shall not be limited by reason of the listing of any insurance coverage.
It is further understood and agreed that LICENSEE, or any successor or assigns thereto,
in the conduct of any work involved in the PROJECT, shall not be considered the agent of the
DEPARTMENT or of the State of Georgia.
ARTICLE IX
TERMINATION OF CONTRACT
The DEPARTMENT may terminate this contract for just cause at any time by giving of
thirty (30) days written notice of such termination. Upon receipt of such notice of termination,
LICENSEE shall discontinue and cause all work under this contract to terminate upon the date
specified in the said notice. In the event of such termination, the DEPARTMENT shall be paid
for any amounts as may be due it as specified in Article VII up to and including the specified
date of termination. LICENSEE shall have the right to terminate this contract at any time,
provided that such termination is first approved by the DEPARTMENT, and that the
DEPARTMENT is reimbursed in full for all services rendered pursuant to Article VII.
The DEPARTMENT and LICENSEE further agree that, should the DEPARTMENT
allow the LICENSEE to terminate the agreement, the termination, unless determined otherwise
in writing by the DEPARTMENT, shall be contingent upon the following:
A. The LICENSEE, at the discretion of the DEPARTMENT, removing the planted
landscaping, landscape related items, and any other non - standard and decorative elements
that were installed by or for the LICENSEE at no cost to the DEPARTMENT.
B. The LICENSEE restoring the removed landscape areas to their original condition or a
condition that meets federal standards and is acceptable to the DEPARTMENT.
C. The LICENSEE restoring the removed non - standard and decorative elements with
standard DEPARTMENT elements that meet federal and state requirements.
D. The LICENSEE reimbursing the DEPARTMENT in full any state and /or federal funds
used to purchase and install the landscaping, landscape related items, and other non-
standard and decorative elements that are no longer to be maintained by the LICENSEE.
The DEPARTMENT and the LICENSEE agree that, should the LICENSEE fail to
perform the maintenance, as set forth in Article XI - MAINTENANCE WORK PLAN, the
DEPARTMENT may require the LICENSEE to remove, restore, and reimburse according to
items "A ", "B ", "C ", and "D" above, as applicable, and then terminate the agreement.
ARTICLE X
COMPLIANCE WITH APPLICABLE LAW
The undersigned certify that:
A. This Agreement is subject to applicable state and federal laws, standards, and
rules and regulations.
B. The provisions of Sections 45 -10 -20 through 45 -10 -28 of the Official Code of
Georgia Annotated relating to Conflict of Interest and State Employees and Officials Trading
with the State have been complied with in full.
C. The provisions of Section 50 -24 -1 through 50 -24 -6 of the Official Code of
Georgia Annotated, relating to the "Drug -Free Workplace Act" have been complied with in full.
ARTICLE XI
MAINTENANCE WORK PLAN
The LICENSEE will be fully responsible for performing and funding all activities
associated with the construction and maintenance of the chain link fence associated with
DEPARTMENT permit number 09 -2011- 012 -245, hereinafter referred to as the "FENCE ".
The LICENSEE will also be responsible for the re- installation of the FENCE in the aftermath
of any DEPARTMENT project that may take place in the project area, resulting in the
demolition the FENCE.
For all maintenance activities, at a minimum, abide by the Federal Manual of Uniform Traffic
Control Devices (MUTCD) standards, current edition, for temporary traffic control. Move
equipment or materials on or across a traveled way in a manner as not to unduly interfere with
traffic. Approved work includes litter pick -up, mowing grass, fertilizing, watering, weeding, and
other general routine care for any landscape approved within the area covered by this agreement.
The covenants herein contained shall, except as otherwise provided, accrue to the benefit of and
be binding upon the successors and assigns of the parties hereto.
IN WITNESS WHEREOF, said parties have hereunto set their hand and affixed their seals the
day and year above first written.
GEORGIA DEPARTMENT OF TRANSPORTATION
Commissioner or designee
ATTEST:
Angela Whitworth
Treasurer
LICENSEE:
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NOTARY PU
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Notary Public, Richmond County, Georgia
My C nmission Expires Nov. 17, 2015
EXHIBIT `A'
(Attach the Application and Permit for Special Encroachment with approved drawings or the final working
drawings for a Department- approved construction)
Keith Golden, P.E., Commissioner o
One Georgia Center, 600 West Peachtree Street, NW
Atlanta, Georgia 30308
Telephone: (404) 631 -1000
Augusta - Richmond County
530 Greene Street
Augusta, GA 30901
Attention: George Patty
"Op G Ev
01/04/2012
GEORGIA DEPARTMENT OF TRANSPORTATION
Re: Permit Type:7410; Permit Number:09 -2011 -012 -245; Tracking #:295326; State Route 002800;
Mile Post 5.42; Richmond County
Dear Applicant:
Your permit application to perform specified work within the right of way limits of the above referenced State
Highway has been duly executed on behalf of the Department of Transportation. However, construction work
as approved by the permit must begin within 90 days of this approval letter or the permit will be void. Your
permit copy has been forwarded to, Ronnie Sanders, Area Permit Inspector. His address is 4260 Frontage
Road, Augusta, GA 30909. His phone number is (706) 855 -3466.
It will be necessary for you or your representative to contact the Area Permit Inspector to claim your permit
copy and identification sign, discuss the beginning of construction date, and methods of complying with permit
requirements. He will set the time that he can furnish personnel for the required supervision of your work.
Please contact him at least 24 hours in advance of your planned construction beginning time. It is suggested
that you contact him by telephone before any personal visits. Your approved permit and a copy of the
approved plans are required to be kept on the construction site at all times during construction.
With this approval, as the applicant, you agree to make any utility relocation or adjustments deemed necessary
by the Area Permit Inspector, and abide by any special requirements listed on the red sheet attached to the
approved plan set.
Please notify the Area Permit Inspector upon completion of work under this permit so that a final inspection
may be conducted. Upon approval of completed work, you will be released from the performance bond or
escrow, You should request said inspection only after you feel that all work has been completed in compliance
with all requirements and a satisfactory s nd of grass has been obtained.
#' ( i 114e (l/c. - e ( • 2 (,-r Yours very truly,
( y e,
co '� T � 17/6 BY: Todd Price, P.E.
District Access Management Supervisor
DEPARTMENT OF TRANSPORTATION
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cc: Daphne Cautela, State Access Management Supervisor
Ronnie Sanders, Area Permit inspector
FOR: James H. Smith, P.E.
District Engineer