WITNESSETH: WHEREAS, the Intergovernmental Contracts Clause provides, in pertinent part, as follows:

Transcription

1 FORSYTH COUNTY CITY OF JOHNS CREEK INTERGOVERNMENTAL AGREEMENT REGARDING A CITY OF JOHNS CREEK COMMUNICATIONS TOWER TO BE CONSTRUCTED AND LOCATED WITHIN FORSYTH COUNTY This Intergovernmental Agreement ( IGA ) entered into this day of, 2015 (the Effective Date ) by and between FORSYTH COUNTY, GEORGIA, a political subdivision of the State of Georgia, acting buy and through its governing authority, the Forsyth County Board of Commissioners (hereinafter the "County") and the CITY OF JOHNS CREEK, a municipal corporation acting by and through its governing authority, the City Council of Johns Creek, Georgia (hereinafter the City ). WITNESSETH: WHEREAS, the parties are authorized to enter into this IGA pursuant to Article IX, Section III, Paragraph I of the Constitution of the State of Georgia of 1983 regarding intergovernmental contracts ( Intergovernmental Contracts Clause ); and WHEREAS, the Intergovernmental Contracts Clause provides, in pertinent part, as follows: The state, or any institution, department, or other agency thereof, and any county, municipality, school district, or other political subdivision of the state may contract for any period not exceeding 50 years with each other or with any other public agency, public corporation, or public authority for joint services, for the provision of services, or for the joint or separate use of facilities or equipment; but such contracts must deal with activities, services, or facilities which the contracting parties are authorized by law to undertake or provide. WHEREAS, it is well established that, for an Intergovernmental Agreement under Article IX, Section III, Paragraph I to be lawful and proper, it must involve the provision of services, or... the joint or separate use of facilities or equipment, and deal with activities, services, or facilities which the contracting parties are authorized by law to undertake or provide (City of Decatur v. DeKalb County, 289 Ga. 612, 713 S.E.2d 846 (2011) (internal quotations omitted)); and WHEREAS, the City desires to construct a communications tower in the County, which tower is intended to be used primarily to install certain public safety systems and equipment in the exercise of

2 powers related to the City s police and fire protection services, including ambulance and emergency rescue services; and WHEREAS, pursuant to the Constitution of the State of Georgia, no municipality may exercise powers related to police and fire protection or public health facilities and services, including ambulance and emergency rescue services, outside its own boundaries except by contract with the county or municipality affected (GA CONST. Art. 9, 2 Para. III); and WHEREAS, the City and County desire to enter into this IGA authorizing the City to construct a communications tower within Forsyth County in exchange for certain benefits and consideration flowing to Forsyth County, as outlined herein; and WHEREAS, the Supreme Court of Georgia has held that, in Georgia, property owned by the state or county and used for a governmental purpose is exempt from municipal zoning regulation, whether or not the property is acquired by eminent domain or by bargain and sale (Macon Ass n for Retarded Citizens v. Macon-Bibb County Planning and Zoning Comm n, 252 Ga. 484, 314 S.E.2d 218 (1984)); and WHEREAS, this concept also extends to property owned by a municipality and used for a government purpose (See Mayor of Savannah v. Collins, 211 Ga. 191, 84 S.E.2d 454 (1954)); and WHEREAS, the Official Code of Georgia defines "property" as "realty and personalty which is actually owned." O.C.G.A The term "realty" means "any interest existing in, issuing out of, or dependent upon the land..." O.C.G.A ; and WHEREAS, it is well established in Georgia that an easement is an "interest in land owned and possessed by another..." 1 George A. Pindar & Georgine S. Pindar, Georgia Real Estate Law and Procedure 8-1, at 406 (4th ed. 1993) (footnotes omitted). See also Smith v. Gwinnett County, 248 Ga. 882, 884 (1982) (describing particular easement as an irrevocable property right ); Lee v. City of Atlanta, 219 Ga. App. 264, 265 (1995) ( An easement is an interest which one person has in the land of another, quoting Restatement of the Law of Property (1944), p. 2902, 450); Stephens County Soil & Water Conservation Dist. v. Wright Brothers Constr. Co., 215 Ga. App. 352, 353 (1994) ( An easement created by agreement constitutes a property interest in the land ); Barton v. Gammell, 143 Ga. App. 291, 293 (1977) ( An easement always implies an interest in the land in and over which it is to be enjoyed, quoting 25 Am. Jur. 2d 419, Easements & Licenses, 3); and

3 WHEREAS, the property of a municipality, to include a municipally-owned easement on the property of another, satisfies the definition of both realty and property and therefore brings the easement interest within the exemption identified in Macon Ass n for Retarded Citizens v. Macon-Bibb County Planning and Zoning Comm n, 252 Ga. 484, 314 S.E.2d 218 (1984); and WHEREAS, the above principles, as they relate to government towers placed on government property, are codified in Article 2.2(D) of Chapter 16 in Forsyth County s Unified Development Code ( UDC ), which provides (in part), All government towers with public safety systems or equipment shall be exempt from the requirements of this subsection; and WHEREAS, the County has otherwise asserted the position that the mere use of private property for a government purpose, absent a governmentally-owned property interest in the property, would not fall within the Article 2.2(D) UDC exemption; and WHEREAS, the City does not necessarily agree with the immediately preceding position of the County; and WHEREAS, the City has acquired or will acquire an easement interest in that property located on Land Lot , which property is more specifically described in Exhibit A, attached hereto and incorporated herein by reference (the Premises ); and WHEREAS, the County therefore believes the exemption in Section 2.2(D) of the UDC has been satisfied and the City is not required to secure a conditional use permit; and WHEREAS, the City and County believe the best interests of their respective citizens will be served by the exchange contemplated in this IGA, the projects and services to be undertaken pursuant to this IGA, and those ancillary activities otherwise forming a part of this IGA. NOW THEREFORE, in consideration of the mutual benefits to the parties hereto and all of the citizens they represent and other good and valuable consideration as set forth herein below, the County and City enter into this IGA upon the following terms, conditions, and stipulations: 1. No Conditional Use Permit. The Parties hereto agree, based upon the facts and stipulations set forth in the preamble - to specifically include the City's ownership of an irrevocable easement interest on tax parcel which shall extend for the life of the proposed tower, and the

4 use of that easement for a governmental purpose - that the City is not legally required to comply with those County's conditional use permit requirements as identified in UDC, section , et. seq. 2. Authorization of City by County. The County hereby authorizes the City to construct a communications tower on the Premises; provided that such authorization is contingent upon the following: a. The tower the City is authorized to build shall be of a design and appearance that is in substantial conformity with the design specifications attached hereto as Exhibit B; b. In no event shall the tower exceed 200 feet in height or otherwise be of a height as to require lighting under FAA standards in effect as of the date of entry into this Agreement. Stated further, and to ensure clarity, the City agrees that in no event will the tower be lighted unless pertinent State or federal laws or regulation are subsequently enacted that require lighting. During the term of this IGA, the tower may not be modified, replaced, or otherwise extended to exceed 200 feet in height; c. The City shall comply with the County s Building Codes regarding construction of such tower; d. The City shall otherwise comply with any pertinent State or federal regulations regarding construction of the tower; e. The tower shall have as its primary purpose the installation, operation, and maintenance of a public safety radio communication system, to include antennas and related infrastructure; Although construction of the communications tower will be a City project, the County agrees to reasonably cooperate with the City with respect to permitting, inspections, and other requirements of construction. The City shall be responsible for all costs associated with tower construction, operation, maintenance and repair. 3. Use of the Tower. In exchange for the authorization provided in Paragraph 2 of this IGA, the City agrees as follows:

5 a. County Use of the Communications Tower. The County may, at no additional cost to the County, install on the communications tower, and the communications tower will be engineered and designed to support, the following: i. a County tornado warning siren weighing up to four hundred pounds (400 lbs); and ii. a County public safety radio antenna. b. The tower shall be designed, engineered and constructed with the loading capacity, structural integrity and space availability to allow the installations identified in paragraph 3(a)(i) and (a)(ii). The City and County agree that the installations contemplated by paragraph 3(a)(i) and (a)(ii), if same occur, shall be undertaken with sufficient physical separation between the City public safety antenna and such installations so as to ensure no substantial degradation of performance to the public safety antenna. c. The authority by the County to install the infrastructure identified in paragraph 3(a)(i) and (a)(ii) shall be mandatory for the duration of this Agreement, unless and except that if private party collocations, as contemplated in paragraph 3(d), have been authorized by the County such that, in the certified opinion of a licensed professional or RF engineer, as applicable, such additional County infrastructure would compromise the structural integrity of the tower or RF functionality of existing antennas. In such event, the County shall not be authorized to install the infrastructure identified in paragraph 3(a)(i) and (a)(ii). d. Private Party Collocations. The City hereby agrees to allow private party collocations (i.e., Verizon, AT&T, etc.) on the tower where the installation of such collocations originates out of a request for a telecommunication facility in the County and such collocation would serve to dispense with the need for construction of a separate tower in the County. The City shall not be authorized to utilize the tower for collocations that originate out of telecommunications tower requests in the City. The City and County agree that, if any private party collocates on the communications tower, a lease with the private party shall be negotiated with the City at a normal and customary lease rate and the City and County shall equally share all lease proceeds. The County shall be entitled to

6 review and approve the negotiated lease prior to execution, but shall not be a party thereto. A collocation under this paragraph shall not be required if a licensed professional engineer or RF engineer, as applicable, certifies that installation of the collocation infrastructure would result in weight or loading that would exceed the structural design thresholds of the tower; or that the proposed infrastructure would significantly impair the functionality of any other communications system already installed on the tower. e. Access. The City will allow the County, at no additional cost, to access the Premises and the communications tower constructed thereon as needed to fulfill the terms of this IGA. f. Cost. The costs for installation, maintenance and repair of the installations in 3(a)(i) and 3(a)(ii) shall be the responsibility of the County. 4. Annexation. The City and County agree that neither this Agreement nor the acquisition of a property interest by the City within the jurisdictional boundary of the County should be construed or is intended to suggest as any effort by the City to seek annexation into the County and that the City has no present intention to seek such annexation. 5. Term. The term of this IGA shall be for fifty (50) years beginning on the Effective Date provided above. 6. No Joint Venture - The Parties hereto agree that nothing contained within this Agreement can be or should be construed as creating a joint venture or partnership between the City and the County; and that any acquisition of, or construction on, the Premises shall be the exclusive responsibility and sole obligation of the City. 7. Public Procurement Requirements. The City agrees that any communications tower constructed on the Premises will be constructed in full compliance with all public works bidding requirements of the State of Georgia. 8. E-verify and Title VI: The City agrees that any contracts let regarding construction of the tower shall contain all required E-verify and Title VI requirements under applicable law.

7 9. Governing Law, Disputes and Venue. This IGA shall be governed by and construed in accordance with the laws of the State of Georgia. If any disputes or issues arise in connection with this IGA which cannot be resolved amicably, then either party shall have the right to request the other party participate in non-binding mediation. The mediator shall be mutually agreed upon, and the costs of the mediator shall be shared equally between the parties. In the event there is no request for mediation or mediation efforts fail, then any dispute or issues shall be resolved through litigation. In the event mediation is unsuccessful or deemed futile, the City and County shall each be entitled to pursue all available remedies at law or equity; provided that any action or suit related to this IGA shall be brought in the Superior Court of Forsyth County, Georgia, and the parties hereby submit to the jurisdiction and venue of such court. 10. Entire Agreement/Amendment. This IGA contains the entire agreement of the parties and supersedes all prior communications or agreements, whether oral, written, or understood, regarding the subject of this IGA. This IGA may be modified or amended only in writing properly executed by both parties. 11. Assignment. This IGA may be assigned by either party only with the consent of the other party. 12. Severability. If any portion of this IGA shall be held to be invalid, illegal, void or otherwise unenforceable for any reason, the remaining provisions shall continue to be valid and enforceable. If a court of competent jurisdiction finds that any provision of this IGA is invalid or unenforceable but that, by limiting such provision, it would become valid and enforceable, then such provision shall be deemed to be written, construed, and enforced as so limited. 13. Third Party Beneficiaries. This IGA is entered into for the benefit of the parties hereto only and shall confer no benefits, direct or implied, to any third persons or authorize anyone not a party to this IGA to maintain an action pursuant to the terms or provisions of this IGA. 14. Notification. Any notices required to be given pursuant to the provisions of this IGA shall be given in writing and shall be deemed received, and shall be effective when: (1) personally delivered, or (2) on the third day after the postmark date when mailed by certified mail, postage prepaid, return receipt requested, or (3) upon actual delivery when sent via national overnight commercial carrier to the other party at the address given below, or at a substitute address previously furnished to the party by written notice in accordance herewith:

8 To Forsyth County: To City of Johns Creek: County Manager City Manager 110 East Main Street, Suite Findley Road, Suite 400 Cumming, GA Johns Creek, GA Authority. Each of the individuals executing this IGA on behalf of his or her respective party agrees and represents to the other party that he or she is authorized to do so and further agrees and represents that this IGA has been duly passed upon by the required governmental agency or board in accordance with all applicable laws and spread upon the minutes thereof. The parties hereto agree that this IGA is an intergovernmental contract, and is entered into pursuant to Article IX, Section III, Paragraph I of the Constitution of the State of Georgia Records. Each party shall maintain records relating to matters covered by this IGA as required by Georgia law. Such records shall be maintained for a period of three years following the termination of this IGA. 17. Modification; Waiver. No modification or waiver of any of the terms and conditions of this IGA shall be effective unless such modification or waiver is expressed in a writing executed by each of the parties hereto. 18. Force Majeure. Neither the County nor the City shall be liable for their respective nonnegligent or non-willful failure to perform or shall be deemed in default with respect to the failure to perform (or cure a failure to perform) any of their respective duties or obligations under this IGA or for any delay in such performance due to: (a) any cause beyond their respective reasonable control; (b) any act of God; (c) any change in applicable governmental rules or regulations rendering the performance of any portion of this IGA legally impossible; (d) earthquake, fire, explosion or flood; (e) strike or labor dispute; (f) delay or failure to act by any governmental or military authority; or (g) any war, hostility, embargo, sabotage, civil disturbance, riot, insurrection or invasion. In such event, the time for performance shall be extended by an amount of time equal to the period of delay caused by such acts, and all other obligations shall remain intact. 19. Counterparts. This IGA may be executed in multiple counterparts, and each counterpart shall be considered an original.

9 20. Interpretation. The parties hereto have cooperated in the preparation of this IGA, and hence, it shall not be interpreted or construed against or in favor of either party by virtue of identity, interest, or affiliation of its preparer. IN WITNESS WHEREOF, the City and County have caused this Intergovernmental Agreement to be executed under seal as of the Effective Date first written above. FORSYTH COUNTY, GEORGIA Ralph J. Amos, Chairman [COUNTY SEAL] ATTEST: Sonya Bush, County Clerk CITY OF JOHNS CREEK, GEORGIA Mike Bodker, Mayor [CITY SEAL] ATTEST: Joan Jones, City Clerk

10 Exhibit A [Insert description of Premises leased by the City of Johns Creek.]

11 EXHIBIT B [tower design]

12