WHEREAS, Forsyth County, Georgia is a constitutionally created political subdivision of the State of Georgia; and

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1 INTERGOVERNMENTAL AGREEMENT FOR MAINTENANCE AND CONTROL OF CERTAIN PORTIONS OF MCGINNIS FERRY ROAD BETWEEN THE CITY OF JOHNS CREEK, GEORGIA AND FORSYTH COUNTY, GEORGIA THIS INTERGOVERNMENTAL AGREEMENT ( Agreement ), by and between the City of Johns Creek, Georgia ( City ) and Forsyth County, Georgia ( County ) (collectively referred to herein as the Parties ) is entered into this day of, WHEREAS, Forsyth County, Georgia is a constitutionally created political subdivision of the State of Georgia; and WHEREAS, the City of Johns Creek is a municipality created by the 2006 Georgia General Assembly pursuant to House Bill 1321; and WHEREAS, the City and the County desire to jointly maintain certain portions of McGinnis Ferry Road abutting the borders of both the City of Johns Creek and Forsyth County pursuant to the terms of this Agreement; and WHEREAS, the City and County recognize the need to further define the rights, responsibilities and obligations of each in regard to certain portions of McGinnis Ferry Road; and WHEREAS, Article IX, Section II, Paragraph III of the Constitution of the State of Georgia of 1983, prohibits cities and counties from exercising governmental authority within each other s boundaries except as otherwise provided by law or by intergovernmental agreement; and WHEREAS, the Parties are authorized to enter into this Agreement pursuant to Article IX, Section III, Paragraph I of the Constitution of the State of Georgia of 1983 regarding intergovernmental contracts; and WHEREAS, the County and City desire to enter into an intergovernmental agreement governing the maintenance and control of McGinnis Ferry Road along the border between the City of Johns Creek and Forsyth County. NOW THEREFORE, in consideration of the following mutual obligations, the County and City agree as follows: ARTICLE 1 PURPOSE AND INTENT 1

2 1.1 The County agrees to maintain certain intersections and certain portions of rightof-way along McGinnis Ferry Road, as well as be responsible for certain projects and services conducted within the right-of-way, including paving, signing/marking, and storm water drainage, as further set forth herein. Further, the County agrees to be responsible for the payment of certain utilities as described below. 1.2 The City agrees to maintain certain intersections and portions of right-of-way along McGinnis Ferry Road, as well as be responsible for certain projects and services conducted within such right-of-way, including paving, signing/marking, grass cutting, and storm water drainage, as further set forth herein. ARTICLE 2 TERM OF AGREEMENT The term of this Agreement is for twelve (12) months commencing, 2015 at 0000 hours and concluding at 2400 hours on, 201. This Agreement will automatically renew for an additional term of twelve (12) months at the expiration of the first term unless terminated pursuant to this Agreement. This Agreement will automatically renew for an additional twelve (12) month term at the expiration of each term, unless terminated pursuant to this Agreement, provided that, if not terminated earlier, this Agreement shall terminate absolutely fifty (50) years from the start of the first term of this Agreement. This Agreement may be amended by both Parties in writing. Any such amendment shall only be effective upon approval by a majority vote of the City Council of the City of Johns Creek and the County Commission of Forsyth County. The term of this Agreement may be extended appropriately through any valid amendment to this Agreement. ARTICLE 3 OBLIGATION FOR TRAFFIC SIGNALS 3.1 The Parties shall be responsible for the management of all traffic signals on McGinnis Ferry Road between Douglas Road and the Chattahoochee River. Changes made to the approved timing coordination plan must be approved by both the County and the City before any changes are made to cycle lengths, phase timing, or offset timing. Said changes shall be logged by the Party who implements the change and comply with DOT standards. 3.2 The County shall be responsible for the payment of power bills for all traffic signals on McGinnis Ferry Road between Sargent Road and the Chattahoochee River. 3.3 The City will provide all maintenance costs and be responsible for after-hours maintenance calls for all traffic signals on McGinnis Ferry Road between (and including) Sargent Road and Johns Creek Parkway East. The County will provide all maintenance costs and be responsible for after-hours maintenance calls for all traffic signals on McGinnis Ferry Road between (and including) Lakefield Drive and the Chattahoochee River. For all other areas 2

3 of McGinnis Ferry Road each party will be responsible for maintenance costs and after-hours maintenance calls for traffic signals owned by that party. 3.4 Any new placement of traffic signals on McGinnis Ferry Road between Douglas Road and the Chattahoochee River will require the approval of both the City and County. The City and County shall be jointly responsible for the management of any additional traffic signals placed on McGinnis Ferry Road between Douglas Road and the Chattahoochee River. 3.5 In the alternative to sections 3.1 through 3.4 above, for a period of 180 days subject to the provisions of section 3.6 through 3.9 below, the City may install traffic management software to control the County s traffic signals on McGinnis Ferry Road between Douglas Road and the Chattahoochee River for the purpose of said management. The signal coordination timing plan must be approved by the County prior to implementation by the City on McGinnis Ferry between the Chattahoochee River and Lakefield Drive. During the 180 day period the parties shall meet on a regular basis to discuss the results of and issues with the program and make mutually agreed upon adjustments. Any changes shall be logged in and comply with the Georgia Department of Transportation standards. 3.6 No installation of traffic management software as described in Section 3.5 shall take place until a date and time for installation and implementation is agreed upon by both parties and the 180 day period shall begin to run as of that date. 3.7 The City s authorization to control the County s traffic on McGinnis Ferry Road between Douglas Road and the Chattahoochee River will automatically expire after 180 days unless extended by the County s Director of Engineering at his sole discretion. Thereafter, upon 24 hours written notice to the City from the County s Director of Engineering the County may resume control of its traffic signals on McGinnis Ferry Road and may use any traffic management software for such purpose that is approved by the Georgia Department of Transportation. 3.8 The City may not install additional traffic signals on McGinnis Ferry Road between Douglas Road and the Chattahoochee River without first receiving County approval. 3.9 During the 180 time period and any extension thereto, the City shall be responsible for all maintenance costs and be responsible for after-hours maintenance calls for all traffic signals on McGinnis Ferry Road between Douglas Road and the Chattahoochee River. ARTICLE 4 PAVING AND PIPING PROJECTS Whenever one Party determines that the surface of McGinnis Ferry Road (abutting the border between the City and County) needs to be repaired, resurfaced or marked, the storm water pipes lying under or placed under the surface of McGinnis Ferry Road need to be repaired, replaced, improved, installed or maintained, or other pipes lying under the surface of McGinnis 3

4 Ferry Road need to be repaired or maintained, such Party shall notify the other Party of same. The Parties shall then work together to identify the repairs, maintenance, or improvements (if applicable) to be undertaken and shall negotiate in good faith the scope of the paving or piping project (hereinafter Project ). After both Parties have reviewed and assessed the condition of the road and agree to the scope of the Project, a separate written agreement shall be executed between the Parties setting forth the terms and conditions of the Project (a Project Agreement ). Once a Project under this article has been identified, the costs of such Project, including the cost of design, construction and management shall be set forth in the Project Agreement. Both Parties agree to utilize the most cost effective method practicable to accomplish agreedupon work along McGinnis Ferry Road; however, both Parties acknowledge that in regard to a Project concerning the repair or maintenance of existing piping other than storm water piping, the Party owning the subject piping system will be responsible for all costs of the work related to such piping system. Notwithstanding any other term or provision herein or law to the contrary, each Party acknowledges and agrees that in regard to the installation, improvement, expansion, or change in location of any pipe or piping system on or within the other Party s right-of-way or other real property, the use of the other Party s right-of-way or real property shall require the express written approval of such other Party, which may be withheld at its sole discretion. ARTICLE 5 OTHER OBLIGATIONS The maintenance, repair and regulation responsibility of all signage, potholes, mowing, guardrails and drainage/erosion shall be divided between the Parties as provided herein. Except as otherwise provided for in this Agreement, each Party shall be responsible for those signs, potholes, mowing, guardrails and storm water drainage/erosion concerns on its side of the road, which border shall be delineated by the center line of McGinnis Ferry Road. The City shall mow the grass on the median between Medlock Bridge Road and the Chattahoochee River and the grass on both sides of McGinnis Ferry Road from Sargent Road to the Chattahoochee River. Except as otherwise provided for in this Agreement, any other maintenance, repair, encroachment or utility permits and/or regulation issues that may arise shall be the responsibility of the Party on whose side of the road the issue arises, as determined by the center line of McGinnis Ferry Road, provided that any new median breaks will require approval from both the City and County. ARTICLE 6 PROVISION OF DOCUMENTS Each Party agrees to provide the other, and shall not withhold, all necessary nonprivileged documentation, to the extent allowed by law, with respect to the previous and current maintenance, repair and regulation of any part of McGinnis Ferry Road covered by this Agreement, requested by the other Party when reasonably necessary for the performance of its obligations under this Agreement. 4

5 ARTICLE 7 MUTUAL INDEMNIFICATION 7.1 It is the intent of the Parties to be covered under the auspices of the immunity granted by O.C.G.A Only to the extent permitted by law and in the event O.C.G.A is deemed inapplicable, the County shall defend, indemnify and hold harmless the City and its officers, employees, or agents from any and all liability, losses or damages, including attorneys fees and costs of defense, which the City or its officers, employees, or agents may incur as a result of any claim, demand, suit, or cause of action or proceeding of any kind or nature arising out of, relating to, or resulting from the negligent performance of this Agreement by the County, its employees, officers and agents. 7.2 It is the intent of the Parties to be covered under the auspices of the immunity granted by O.C.G.A Only to the extent permitted by law and in the event O.C.G.A is deemed inapplicable, the City shall defend, indemnify and hold harmless the County and its officers, employees, or agents from any and all liability, losses or damages, including attorneys fees and costs of defense, which the County or its officers, employees, or agents may incur as a result of any claim, demand, suit, or cause of action or proceeding of any kind or nature arising out of, relating to, or resulting from the negligent performance of this Agreement by the City, its employees, officers and agents. 7.3 The immunity and indemnification provisions of this Agreement shall survive termination of this Agreement for any claims that may be filed after the termination date of the Agreement provided the claims are based upon actions that occurred during the performance of this Agreement. ARTICLE 8 TERMINATION The Parties agree that either Party may, upon one-hundred-and-twenty (120) days written notice to the other Party, terminate this Agreement for convenience. The termination of this Agreement by either Party does not absolve either Party from performing its obligations under this Agreement for those issues of maintenance, repair or regulation covered by this Agreement, when notice regarding such issues was provided to the responsible Party prior to the date of termination of this Agreement. Failure of a Party to perform its obligations pursuant to this Section shall constitute an event of default under this Agreement. ARTICLE 9 EVENT OF DEFAULT AND REMEDY 9.1 An event of default shall mean that either Party has failed to perform any of its obligations under this Agreement. 5

6 9.2 In the event of default, the non-defaulting Party shall give written notice to the defaulting Party within ten (10) days of the perceived default, detailing specifically what obligations the defaulting Party has not performed or performed improperly. The defaulting Party shall have ten (10) days from the receipt of such notice to cure the default, and if default is not cured by the defaulting Party, or the defaulting Party has not, in good faith, begun to cure the default within that ten (10)-day period, the non-defaulting Party is entitled to one of the following, or both: Except for those obligations identified in Article 5 of this Agreement, the non-defaulting Party may cure the default itself and charge the defaulting Party the cost of curing that default The non-defaulting Party may terminate this Agreement immediately. Such termination does not absolve the defaulting Party of the responsibility to perform on its maintenance, repair or regulation obligations for issues that arose prior to the date of termination. The non-defaulting Party shall give notice to the defaulting Party as to the actions it intends to take as a result of the default under this subsection in its original notice of default. 9.3 In the event of an emergency, defined as a circumstance which threatens imminent danger to the lives of its citizens, its citizens property, and the property of the nondefaulting Party, the non-defaulting Party may cure the default without notice to the defaulting Party and may subsequently charge the defaulting Party for the cost of curing the default. If the non-defaulting Party desires to terminate this Agreement immediately as a result of a default under this subsection, the non-defaulting Party must still notify the defaulting Party pursuant to Article 9.2 of its intention to do so. 9.4 The provisions of this Article 9 shall not constitute exclusive remedies to the nondefaulting Party under this Agreement. The non-defaulting Party may seek all legal or equitable remedies as are available under law aside from the remedies provided specifically under this Agreement. ARTICLE 10 ENTIRE AGREEMENT It is understood that the terms of this agreement include all of the agreements made by the County and the City without regard to any oral conversations which may have taken place prior to execution or subsequent thereto and that any changes shall be made in writing and agreed to by both Parties. ARTICLE 11 SEVERABILITY 6

7 If a court of competent jurisdiction renders any provision of this Agreement (or portion of a provision) to be invalid or otherwise unenforceable, that provision or portion of the provision will be severed, and the remainder of this Agreement will continue in full force and effect as if the invalid provision or the invalid portion of the provision were not part of the Agreement. ARTICLE 12 GOVERNING LAW AND VENUE This Agreement shall be governed by the laws of the State of Georgia, and proper venue for any actions arising out of this Agreement shall be in the Superior Court of Fulton or Forsyth County, such venue to be determined by the domicile of the defendant in the action. ARTICLE 13 IMMIGRATION COMPLIANCE Pursuant to O.C.G.A , et seq., the Parties shall not enter into a contract for the physical performance of services unless the other Party shall provide evidence on forms attached hereto as Exhibits A and B (affidavits regarding compliance with the E-Verify program to be sworn under oath under criminal penalty of false swearing pursuant to O.C.G.A ), that it and its subcontractors have conducted a verification, under the federal Employment Eligibility Verification ( EEV or E-Verify ) program, of the social security numbers, or other identifying information now or hereafter accepted by the E-Verify program, of all employees who will perform work on the contract to ensure that no unauthorized aliens will be employed. Each Party hereby verifies that it has, prior to executing this Agreement, executed a notarized affidavit, the form of which is provided in Exhibit A, and submitted such affidavit to the other Party. In the event a Party employs or contracts with any subcontractor(s) in connection with the covered contract, the Party employing or contracting with any subcontractor agrees to secure from such subcontractor(s) attestation of the subcontractor s compliance with O.C.G.A and Rule by the subcontractor s execution of the subcontractor affidavit, the form of which is attached hereto as Exhibit B, and such subcontractor affidavit shall become part of the contractor/subcontractor agreement. The Parties hereby agree to comply with the requirements of the federal Immigration Reform and Control Act of 1986 (IRCA), P.L , O.C.G.A and Rule Each Party s compliance with the requirements of O.C.G.A and Rule shall be attested by the execution of the contractor s affidavit, attached hereto as Exhibit A and incorporated herein by this reference. The Parties agree that the employee-number category designated below is correct in relation that that Party s employee status. COUNTY: 500 or more employees CITY: 500 or more employees. 7

8 100 or more employees Fewer than 100 employees 100 or more employees. Fewer than 100 employees Each Party hereby agrees that, in the event it employs or contracts with any subcontractor(s) in connection with this Agreement, such Party will secure from the subcontractor(s) such subcontractor(s ) indication of the above employee-number category that is applicable to the subcontractor. The above requirements shall be in addition to the requirements of State and federal law, and shall be construed to be in conformity with those laws. ARTICLE 14 NONDISCRIMINATION In accordance with Title VI of the Civil Rights Act, as amended, 42 U.S.C. 2000d, section 303 of the Age Discrimination Act of 1975, as amended, 42 U.S.C. 6102, section 202 of the Americans with Disabilities Act of 1990, 42 U.S.C , and all other provisions of Federal law, the Parties agree that, during performance of this Agreement, each Party, for itself, its assignees and successors in interest, will not discriminate against any employee or applicant for employment, any subcontractor, or any supplier because of race, color, creed, national origin, gender, age or disability. In addition, each Party agrees to comply with all applicable implementing regulations and shall include the provisions of this Article 14 in every subcontract for services contemplated under this Agreement. ARTICLE 15 NOTICE Any notice required by this Agreement shall be given in writing by either Party or its attorney or Agent herein named 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 Parties at the address given below, or at a substitute address previously furnished to the other Party by written notice in accordance herewith: If to Forsyth County: John Cunard, Director Forsyth County Department of Engineering 110 East Main Street Cumming, Georgia With a Copy to the counsel for Forsyth County: 8

9 Ken Jarrard, Esq. Christopher Hamilton, Esq. Jarrard & Davis, LLP 105 Pilgrim Village Drive, Suite 200 Cumming, Georgia If to City of Johns Creek: Tom Black, Director Johns Creek Department of Public Works Findley Road Suite 400 Johns Creek, Georgia With a Copy to: Richard A. Carotherss, Esq. E. Ronald Bennett, Jr., Esq. Carothers & Mitchell, LLC 1809 Buford Highway Buford, Georgia ARTICLE 16 MISCELLANEOUS 16.1 NON-WAIVER. Any Party s failure to seek redress for a violation or to insist upon strict performance of any Agreement provision will not prevent a subsequent act, which would originally have constituted a violation, from having the effect of an original violation COUNTERPARTS. This Agreement may be executed in any number of counterparts with the same effect as if all Parties hereto had all signed the same document. All counterparts will be construed together and will constitute one (1) Agreement GENDER AND NUMBER. Unless the context requires otherwise, the use of a masculine pronoun includes the feminine and the neuter, and vice versa, and the use of the singular includes the plural, and vice versa COMPLETE AGREEMENT. This Agreement constitutes the complete and exclusive statement of the agreement between the Parties. It supersedes all prior written and oral statements, including any prior representation, statement, condition or warranty. Except as expressly provided otherwise herein, this Agreement may not be amended without the written consent of all the Parties TIME OF ESSENCE. Time is of the essence of this Agreement. 9

10 16.6 NON-ASSIGNABILITY. Neither Party shall assign any of the obligations or benefits of this Agreement AUTHORITY TO CONTRACT. Each Party declares that it has obtained all necessary approvals of its governing authority to execute and bind the Party to the terms of this Agreement. Ratification of the Agreement by a majority of the governing authority shall be authority for the chairman or mayor (as applicable) to execute on behalf of the governing authority but shall not preclude execution by the full board or council (as applicable) NO THIRD PARTY RIGHTS. This Agreement shall be exclusively for the benefit of the Parties and shall not provide any third parties with any remedy, claim, liability, reimbursement, cause of action or other right FORCE MAJEURE. Neither Party 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 Agreement 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 Agreement 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 WITNESS WHEREOF, the City and County have executed this Amendment through their duly authorized officers on the day and year first above written. FORSYTH COUNTY, GEORGIA ATTEST: Chair Clerk SEAL Forsyth County Board of Commissioners Forsyth County Board of Commissioners Approved as to Form: Forsyth County Attorney Forsyth County Manager 10

11 JOHNS CREEK, GEORGIA Michael Bodker Joan Jones Mayor Municipal Clerk (SEAL) Approved as to Form: Johns Creek Attorney Warren Hutmacher City Manager 11

12 EXHIBIT A CONTRACTOR AFFIDAVIT AND AGREEMENT By executing this affidavit, the undersigned entity verifies its compliance with O.C.G.A , stating affirmatively that such entity, which is engaged in the physical performance of services with, has registered with, is authorized to use and uses the federal work authorization program commonly known as E-Verify, or any subsequent replacement program, in accordance with the applicable provisions and deadlines established in O.C.G.A Furthermore, the undersigned entity will continue to use the federal work authorization program throughout the contract period, and the undersigned entity will contract for the physical performance of services in satisfaction of such contract only with subcontractors who present an affidavit to the contractor with the information required by O.C.G.A (b). The undersigned entity hereby attests that its federal work authorization user identification number and date of authorization are as follows: Federal Work Authorization User Identification Number Date of Authorization Name of Entity Name of Project Name of Public Employer With Which the Entity is Contracting I hereby declare under penalty of perjury that the foregoing is true and correct. Executed on,, 201 in (city), (state). Signature of Authorized Officer or Agent Printed Name and Title of Authorized Officer or Agent SUBSCRIBED AND SWORN BEFORE ME ON THIS THE DAY OF,201. NOTARY PUBLIC [NOTARY SEAL] My Commission Expires: 12

13 EXHIBIT B SUBCONTRACTOR AFFIDAVIT By executing this affidavit, the undersigned contractor verifies its compliance with O.C.G.A , stating affirmatively that the individual, firm or corporation which is engaged in the physical performance of services under a contract with (name of entity) working with has registered with, is authorized to use and uses the federal work authorization program commonly known as E-Verify, or any subsequent replacement program, in accordance with the applicable provisions and deadlines established in O.C.G.A Furthermore, the undersigned contractor will continue to use the federal work authorization program throughout the contract period, and the undersigned contractor will contract for the physical performance of services in satisfaction of such contract only with subcontractors who present an affidavit to the contractor with the information required by O.C.G.A (b). Additionally, the undersigned contractor will forward notice of the receipt of an affidavit from a subcontractor to the (name of entity) within five (5) business days of receipt. If the undersigned contractor receives notice that a subcontractor has received an affidavit from any other contracted sub-subcontractor, the undersigned contractor must forward, within five (5) business days of receipt, a copy of the notice to the (name of entity). Contractor hereby attests that its federal work authorization user identification number and date of authorization are as follows: Federal Work Authorization User Identification Number Date of Authorization Name of Subcontractor Name of Project Name of Public Employer Executed on,, 201 in (city), (state). Signature of Authorized Officer or Agent Printed Name and Title of Authorized Officer or Agent SUBSCRIBED AND SWORN BEFORE ME ON THIS THE DAY OF,201. NOTARY PUBLIC [NOTARY SEAL] My Commission Expires: I hereby declare under penalty of perjury that the foregoing is true and correct. 13

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