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HomeMy WebLinkAboutACCESS AND REMEDIATION AGREEMENT BETWEEN AUGUSTA, GEORGIA AND ATLANTA GAS LIGHT Execution Copy ACCESS AND REMEDIATION AGREEMENT THIS ACCESS AND REMEDIATION AGREEMENT (the "Agreement") is made and entered into as of the 9�'day of January, 2018 by and between AUGUSTA- RICHMOND COUNTY, GEORGIA ("Augusta"), being the consolidated government of the former City Council of Augusta and Richmond County, Georgia, and ATLANTA GAS LIGHT COMPANY("AGL"), being a corporation organized and existing under the laws of the State of Georgia. WITNESSETH: WHEREAS, Augusta owns certain real property known as Walton Way, Eighth Street, King Street, D'Antignac Street, and Taylor Street, and associated rights of way, all as generally depicted on the attached Exhibit A(the "City Property"); WHEREAS, the City Property is located near a former manufactured gas plant (the "MGP"); and WHEREAS, environmental investigations associated with the MGP indicate that chemical constituents, substances and compounds that are associated with MGP operations ("MGP Constituents")remain on the City Property as well as on adjacent property owned by AGL; and WHEREAS, pursuant to the Voluntary Remediation Program, O.C.G.A. §§ 12-8-100, et seq., AGL has prepared a Voluntary Investigation and Remediation Plan ("VIRP") dated August 28, 2014; and WHEREAS, on September 23, 2014, AGL entered into a consent order (as may be amended from time to time, the "Consent Order") with the Georgia Environmental Protection Division (along with any successor agency exercising substantially the same authority, hereinafter"EPD") to carry out the VIRP according to such additional plans and final design documents as AGL or its representatives may prepare consistent with the Consent Order; WHEREAS, on Thursday, December 7, 2017, representatives of AGL and Augusta met to review the essential elements of the corrective action and restoration activities AGL plans to perform on City Property to satisfy obligations under the Consent Order, which essential elements were reflected on the 60% Design Drawings for Augusta Former MGP Site Remediation presented at said meeting (hereinafter, the "Preliminary Plan", attached hereto as Exhibit B); and WHEREAS, Augusta has agreed to the VIRP Preliminary Plan as it relates to City property and to review within a reasonable period of time final plans presented by AGL to complete the design and specifications reflected in the Preliminary Plan as it may relate to the City Property and to approve those final plans so long as they are materially consistent with Augusta's ordinances, rules and other guidance applicable to similar projects (upon approval said completed plans shall be the "Final Plan" unless AGL makes changes to the Plan and in such case AGL must submit revisions to the City for City approval); and Execution Copy WHEREAS, Augusta wishes to grant AGL access to the City Property for purposes of conducting the remedial action described in the Final Plan. NOW, THEREFORE, for and in consideration of the mutual promises and obligations set forth herein, and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, and intending to be legally bound hereby, the Parties do hereby agree to this Agreement upon the following terms and conditions: 1. Recitals. The foregoing recitals are hereby made a part of this Agreement as if fully set forth herein. 2. Access. Augusta hereby authorizes AGL and its authorized agents, representatives, and contractors to enter upon the City Property on the terms set forth in this Agreement for purposes of performing in situ stabilization (including, but not limited to, surface and soil excavation, utility relocation, and site restoration, in connection therewith), groundwater monitoring, sampling, and related activities, all as may be detailed in the Final Plan or as otherwise reasonably necessary to secure EPD's concurrence with a compliance status report ("CSR")covering said City Property and(the"Work"). 3. AGL's Obligations. a. AGL will conduct the Work in a manner so as to minimize to the extent reasonable interference with Augusta's operations. The Work shall be deemed complete upon EPD's approval of a compliance status report covering the City Property, notwithstanding any long term periodic monitoring required by EPD. b. The Final Plan may obligate AGL to conduct long-term periodic groundwater monitoring on the City Property. Augusta acknowledges that AGL shall have access to the City Property after completion of the Work to conduct such monitoring and any other monitoring required by EPD or the Final Plan. c. Unless otherwise requested by Augusta, promptly upon completion of the Work, AGL will restore the City Property to the condition existing prior to the Work to the extent practical, except that AGL shall restore City Property in compliance with all engineering, materials and other reasonable requirements applicable to the restoration work current at the time of such restoration as provided by Augusta. Notwithstanding the preceding sentence, if the Final Plan requires continued groundwater monitoring, then groundwater monitoring wells may remain on the City Property as long as such wells, in the sole opinion and determination of Augusta Engineering Department ("AED"), do not interfere with or hinder the use of City Property. In such case, the City will make reasonable efforts to prevent damaging the wells, including, but not limited to, providing reasonable notice to AGL of any work being performed by the City on property where the wells located. AGL will permanently fill and close any remaining groundwater monitoring wells within six months after the final groundwater monitoring event. 2 Execution Copy d. All soil, water, spent supplies and other waste materials resulting from the Work are AGL's responsibility and AGL will ensure that such materials are handled and disposed of in accordance with applicable law, regulations, and procedures. e. The Work shall be performed in accordance with the standards practiced by reputable professionals in the environmental consulting, engineering and remediation disciplines and profession. f. AGL will ensure that the Work is performed in compliance with all applicable laws, rules, and regulations and will obtain all permits necessary for the conduct of the Work and for the handling and transport of waste materials and other residuals, including any permits required by Augusta, which Augusta will not unreasonably withhold. g. AGL will contact the relevant utility communications system(s) and locate utilities on the City Property prior to any invasive work on the City Property. h. AGL shall ensure that its contractors maintain commercial general liability and City Property damage insurance with a combined single limit coverage of not less than $2,000,000.00 and the City shall be included as an additional named insured. i. AGL will provide Augusta with a copy of each progressive monitoring report and each final report submitted to EPD regarding the Work on the City Property. j. AGL or its agent shall notify all property owners whose property is adjacent to any portion of the Work of the general scope and time of the Work as soon as practical after AGL or its agent knows of the general scope and time frame of the Work. k. AGL shall reconstruct right of way per the then current standard and regulations of the City. 1. All construction/reconstruction activities by AGL or its agents shall be coordinated with AED and Augusta Utilities Department("AED"). The City shall have the option to monitor and evaluate the said construction/reconstruction activities as to performance, quality control, inspection and testing. 4. Indemnification and Release. a. AGL agrees that it is solely responsible for the conduct of the Work and the performance of obligations of AGL under this Agreement; will bear all costs and expenses thereof; and that Augusta does not have any responsibility or liability for the Work or for any losses, costs, expenses, liabilities, or damages as part thereof or resulting therefrom except as specifically provided in this Agreement. AGL further agrees that AGL will fully indemnify, defend and hold harmless Augusta, its officers and agents from and against any and all claims, suits, damages, liabilities, judgments, fines, attorneys' fees, penalties, losses, costs or expenses arising out of, caused, or claimed to arise out of or be caused by: (i) the Work; (ii) any activity conducted by AGL or its contractors relating to or arising out of the implementation of the Final Plan, but only to the extent caused by or resulting from the sole negligence of AGL or its contractors; (iii) 3 Execution Copy subject to the limitations of paragraph 4.c below, any actions or claims brought by property owners for loss of business, loss of profits, taking of property without compensation, or loss of access to property, allegedly caused by the Work or by any permit issued to AGL by Augusta in connection with the Work or any other action taken by Augusta on behalf of AGL or at the request of AGL in connection with or arising out of the Work (the "Road Closure Claims"); (iv) the presence of MGP Constituents on the City Property that results in any third party claim or requirement of additional action by EPD; (v) the breach of any covenant by AGL contained in this Agreement; or (vi) Augusta's successful enforcement of this indemnity; provided, however AGL shall have no obligation to indemnify or hold harmless Augusta against liability for damages arising out of bodily injury to persons or damage to City Property to the extent caused by or resulting from the negligence or willful misconduct of Augusta, or its agents or employees. The foregoing matters described in this subparagraph a.(i)-(vi) are hereinafter called the "Indemnified Matters." b. Except as otherwise provided herein, Augusta hereby unconditionally waives, releases, acquits and forever discharges AGL, its respective officers, directors, partners, shareholders, employees, agents, representatives and affiliates, of and from any and all claims, actions, causes of action, demands, rights, damages, costs, expenses, rights of contribution or compensation whatsoever, direct or indirect, known or unknown, foreseen or unforeseen, Augusta now has or that may arise in the future on account of or in any was related to or in connection with any past or present physical characteristics or conditions of the City Property, including, without limitation, the presence of any MGP Constituents that are present on the City Property as of the date of this Agreement. Augusta does further covenant not to sue or otherwise seek recourse against AGL, its respective officers, directors, partners, shareholders, employees, agents, representatives and affiliates on any such claim, demand, action, cause of action, suit, liability, indebtedness, duty, obligation or responsibility herein released. Notwithstanding the foregoing, Augusta does not release AGL from (i)the Work; (ii)any third party claims or any requirement by EPD of additional action arising from the presence of MGP Constituents on the City Property after completion of the Work; or (iii) any obligation contained in this Agreement, including, without limitation, the obligation to indemnify under this Paragraph 4. c. AGL's obligations with respect to Road Closure Claims shall be limited as follows: i. Augusta will notify AGL of any Road Closure Claims as soon as practicable after the discovery of such claims. Notwithstanding any other provision of this Agreement, AGL shall have no indemnity obligation for Road Closure Claims unless the Augusta notifies AGL of such claim within ten (10) business days after the Director of AED has actual notice of a written demand for a Road Closure Claim. ii. AGL will have the full and complete right to assume a defense of Augusta with respect to any Road Closure Claims made against Augusta. 4 Execution Copy iii. Augusta will fully cooperate with AGL in the defense of any Road Closure Claims, including making its officials reasonably available for meetings, depositions and testimony and providing technical expertise subject to the approval of General Counsel for the City or his/her designee. Further Augusta will provide AGL with full and complete access to any Augusta records required to mount the defense as permitted by law and the policies of the City and subject to the approval of General Counsel for the City or his/her designee. d. AGL shall have the right to assume and take over the defense of any claim involving an Indemnified Matter and engage attorneys to represent AGL and Augusta. Augusta shall notify AGL within ten (10)business days after Augusta's [Attorney?] receives actual notice thereof. Augusta shall cooperate with AGL in any manner that AGL shall request in the defense of any claim involving an Indemnified Matter. 5. Road Closures. Augusta understands the Work will require the temporary closure or partial closure of certain public roadways on the City Property(the "Road Closures"). a. Augusta and AGL agree to work together in good faith to coordinate such Road Closures, subject to a City approved traffic plan. b. AGL will furnish barricades, flagmen and signage, if and to the extent reasonably required and pursuant to a City approved traffic plan, for such Road Closures. AGL will attempt in good faith to avoid selecting times for performance of the Work that require Road Closures that would unreasonably interfere with Augusta's activities. c. AGL or its agent shall notify, in writing,Augusta and all property owners who own property with frontage adjacent to, or who reasonably may be affected by, the Road Closures, and how long AGL expects such Road Closures to last, as soon as practical after AGL knows of the date such Road Closures will begin, but not less than five (5) business days prior to the first date of each such Road Closures. 6. Augusta's Obligations. Without limiting anything else in this Agreement, a. Augusta shall consent to having the City Property entered into the Voluntary Remediation Program and shall execute one or more covenants under the Uniform Environmental Covenants Act, O.C.G.A. §§ 44-16-1 et. seq., providing recorded notice of the corrective action contemplated by the Final Plan and restricting the use of the City Property, all in such form and substance as may be necessary to secure EPD's concurrence with a CSR covering the City Property certifying compliance with Type 5 risk reduction standards, or such other standards as may be acceptable to EPD; b. Augusta shall reasonably provide, pursuant to policies and practices of AED any permits, approvals, licenses, authorizations, or other cooperation that AGL may need for the efficient execution of the Work, any fees for which shall not exceed normal and reasonable fees assessed by the City for comparative work. c. Augusta shall notify AGL of any condition of the City Property of which Augusta has actual knowledge and that may threaten the Work. Augusta shall also expend all 5 Execution Copy reasonable efforts to minimize Augusta's interference with the Work. The City shall access to inspect to road reconstruction. d. Augusta hereby authorizes AGL and its contractors to erect temporary barricades or fences to prevent unauthorized persons from entering or approaching areas where the Work is occurring, including, as provided in Paragraph 5, on public roadways. e. Augusta hereby authorizes AGL and its contractors to cordon off an area in the vicinity of the equipment used to perform the Work as such equipment moves about the City Property, including, as provided in Paragraph 5, on public roadways. f. Augusta understands and agrees that signs, notices, or placards may be placed indicating that the activities occurring or the substances present at the City Property are dangerous, hazardous, or subject to regulation. Augusta shall allow AGL access to inspect and maintain such markers, provided, in the sole determination of the City, that such signs, markers, etc. do not create or cause a traffic or public safety hazard. g. Augusta understands and agrees that the Work will necessarily involve the use of heavy equipment and other machinery, as well as access by various delivery and other vehicles. These operations are anticipated to be noisy. 7. No Admission of Liability. Augusta agrees that AGL, by conducting the Work described herein, does not admit to any liability or responsibility for any condition of the City Property. 8. Rights Against Third Parties. Augusta and AGL will each have and retain any rights or remedies under environmental law, at law or in equity, against any third party that may have caused, contributed to or in any manner be responsible for the presence of any MGP Constituents on, in, about, or under the City Property. Augusta and AGL will cooperate with each other in pursuing any such rights and remedies in connection with any claim or litigation against such third parties and will execute and deliver such further documents as the other party may reasonably request relating thereto. 9. Notices. All notices, certificates, or other communications hereunder will be sufficiently given and will be deemed given when delivered by hand, courier, or registered or certified mail, postage prepaid, addressed as follows: If to Augusta: Director of Augusta Engineering Department 452 Walker Street, Suite 110 Augusta, GA 30901 Attn: Dr. Hameed Malik with a copy to: Augusta City Administrator 535 Telfair Street, Suite 910 Augusta, GA 3091 Attn: Janice A. Jackson 6 Execution Copy If to AGL: Paul R. Shlanta Executive Vice President and General Counsel Southern Company Gas Ten Peachtree Place Atlanta, GA 30309 With a copy to: Greg Corbett, P.E. Managing Director Environmental Services Southern Company Gas Ten Peachtree Place Atlanta, GA 30309 and to: W. Scott Laseter Kazmarek Mowrey Cloud Laseter LLP 1230 Peachtree Street,NE, Suite 3600 Atlanta, Ga. 30309 Augusta and AGL may designate any further or different addresses to which subsequent notices, certificates or other communications will be sent. 10. Assignment. The rights of the parties under this Agreement are personal and may not be assigned without the prior written consent of the parties hereto. Subject to the foregoing, this Agreement will be binding upon and enforceable against, and will inure to the benefit of the parties hereto and their respective heirs, legal representatives, successors and permitted assigns. 11. Headings. The use of headings, captions, and numbers in this Agreement is solely for the convenience of identifying and indexing the various provisions in this Agreement and will in no event be considered otherwise in construing or interpreting any provision in this Agreement. 12. Exhibits. Each and every exhibit referred to or otherwise mentioned in this Agreement is and will be construed to be made a part of this Agreement by such reference. 13. Severability. If any term, covenant, condition or provision of this Agreement, or the application thereof, to any person or circumstance, will ever be held to be invalid or enforceable, then in each such event the remainder of this Agreement or the application of such term, covenant, condition or provision to any other person or any other circumstances (other than those to which it will be invalid or unenforceable)will not be hereby affected and each term, covenant, condition and provision hereof will remain valid and enforceable to the fullest extent permitted by law. 7 Execution Copy 14. Non-Waiver. Failure by any party to complain of any action, non-action or breach of any other party will not constitute a waiver of any aggrieved party's rights hereunder. Waiver by any party of any right arising from any breach of any other party will not constitute a waiver of any other right arising from a subsequent breach of the same obligation or for any other default, past, present or future. 15. Rights Cumulative. All rights, remedies, powers and privileges conferred under this Agreement on the parties will be cumulative of and in addition to, but not restrictive of or in lieu of,those conferred by law. 16. Applicable Law. This Agreement will be governed by, construed under and interpreted and enforced in accordance with the laws of the State of Georgia. 17. Entire Agreement. This Agreement contains the entire agreement of the parties with respect to the subject matter hereof and all representations, warranties, inducements, promises or agreements, oral or otherwise, between the parties not embodied in this Agreement will be of no force or effect. 18. Modifications. This Agreement will not be modified or amended in any respect except by written agreement by the parties in the same a manner as this Agreement is executed. 19. Counterparts. This Agreement may be executed in several counterparts and delivered electronically by transmission of pdf or similar email attachment, each of which will be deemed an original, and all such counterparts together will constitute one and the same instrument. 20. Authority. Each party hereto warrants and represents that such party has full and complete authority to enter into this Agreement and each person executing this Agreement on behalf of a party warrants and represents that he has been fully authorized to execute this Agreement on behalf of such party and that such party is bound by the signature of such representative. 21. Effective Date. The effective date of this Agreement shall be the date that all parties to this Agreement have affixed their signature hereto. 22. Confidentiality. The terms and conditions of this Agreement shall be deemed confidential and shall not be disclosed to any person for any purpose. 8 Execution Copy IN WITNESS WHEREOF, the parties have caused this Agreement to be signed by their duly authorized representatives as of the day and year first written above. THE CITY OF AUGUSTA ATLANTA GAS LIGHT COMPANY, a Georgia Corporation ittcowit-1 /41"11111° qt4a) hi, clAilei,,,,f, ley: /q rd, -e dcl Y; FY. By: J 6SS6 W. lcli..t..1,36S Title: .,:!\ c:9--,.,_._..,... ...... .. _ . Title: VP ©pc o4 Attest '. . viltbiisLA/"A,192,` r, c 4 , • 4 a' ♦ ,> s A 1 • ties 4996 _.400 it `T fterN a! �iiw_ (it°ROi�'��� #. 1 9