MEMO COMMUNITY Jachens DEVELOPMENT Land Surveying, DEPARTMENT Inc. P.O. Box 1720 Hinesville, GA 31310-8720 Phone - 912.572.3395 1725 Reynolds Street, Suite 200, Brunswick, GA 31520 Phone: 912-554-7428/Fax: 1-888-252-372 Date: May 31, 2012 To: From: Subject: Glynn County Board of Commissioners David Hainley, Director Right of Entry Agreement Detention Center - Sewer Survey Request: Consider authorizing the Chairman to sign a right of entry agreement with Brunswick Cellulose to allow the surveyor contracted with the County to undertake the survey work required by the civil engineer to design a gravity sewer through property owned by Brunswick Cellulose to the receiving manhole on West Ninth Street. Background: To enable the civil engineer to proceed with the alternative sewer design for a gravity sewer through property owned by Brunswick Cellulose to the receiving manhole on West Ninth Street additional topographic survey work is required. To legally proceed with this survey, a right of entry agreement needs to be executed between the County and Brunswick Cellulose. The proposed agreement is attached to this memo. Alternatives: 1. Authorize the Chairman to sign the Right of entry Agreement. 2. Do not authorize the Chairman to sign the Right of entry Agreement. 3. Defer authorizing the Chairman to sign the Right of entry Agreement. Staff Recommendation: Staff recommends alternative 1. Recommended Motion: I move to authorize the Chairman to sign the Right of entry Agreement.
RIGHT OF ENTRY AND ACCESS AGREEMENT THIS RIGHT OF ENTRY AND ACCESS AGREEMENT (this Agreement ) is made effective as of the day of June, 2012 (the Effective Date ), by and between BRUNSWICK CELLULOSE, INC., a Delaware corporation ( BCI ), and GLYNN COUNTY BOARD OF COMMISSIONERS, a political subdivision of the State of Georgia (the County ). WHEREAS, BCI owns certain real property located east of Ross Road and north of West Ninth Street in Brunswick, Glynn County, Georgia, as more particularly described as Parcel Five on Exhibit A, attached hereto and made a part hereof (the BCI Property ); and WHEREAS, the County has informed BCI that a new sewer line must be extended across the BCI Property; WHEREAS, the County requested and BCI agreed to allow the County s surveyor to access the BCI Property in order to perform a topographic survey for the proposed sewer line easement to be granted by BCI to the County across the BCI Property; NOW, THEREFORE, in consideration of the mutual promises contained herein, BCI and the County, intending to be legally bound, do hereby covenant and agree as follows: 1. Right of Entry. (a) BCI hereby agrees to give the County access to, over and across the surface of the BCI Property for the purposes of performing a topographic survey in connection with the extension of the new sewer line and proposed sewer line easement and temporary construction easement (the Permitted Activity ). (b) The County agrees to use best efforts to conduct the Permitted Activity in a manner that does not disrupt, disturb or inconvenience BCI s use of the BCI Property. (c) Nothing contained herein shall be construed as granting to the County any property or ownership rights in the BCI Property, or to create a partnership or joint venture between BCI and the County. 2. Use. The County shall not use the BCI Property for any purpose other than as expressly permitted in this Agreement and/or purposes which are incidental and necessary to carry out the intent and purpose of this Agreement. The County shall not engage in or perform any work or activity on the BCI Property other than that contemplated by this Agreement. 3. Activities. (a) The Permitted Activity shall be at the sole cost and expense of the County. The County is expressly prohibited from performing any physical testing, drilling, boring, sampling or other invasive testing or study on or about the BCI Property, performing any plant sampling or engaging in any activities, inspections or tests other than the Permitted Activity. The County shall leave the BCI Property in good condition and repair upon completion of the Permitted Activity and otherwise in the condition that existed upon its entry upon the BCI Property, less ordinary wear and tear, shall remove all equipment and debris, and shall restore the BCI Property to its condition immediately preceding such Permitted Activity or entry, less ordinary wear and tear. The County shall keep the BCI Property free from liens relating to or arising out of the Permitted Activity.
(b) The County agrees to work with BCI in an effort to comply with all of BCI s security practices and procedures, if any, when entering upon, and/or performing the Permitted Activity on the BCI Property. (c) The County shall fully comply with all of the laws, rules, regulations and requirements of any and all federal, state or local government, authority, agency, commission or regulatory body insofar as the same may apply to the County s Permitted Activity hereunder, and particularly as such laws, rules, regulations and requirements may relate to protection of the environment. (d) Representatives of BCI shall have the right, in their discretion, to accompany the County during the Permitted Activity. 4. Indemnification. The County hereby agrees that it shall be responsible for all acts and omissions of itself and its agents, employees and contractors in exercising the rights and privileges granted in this Agreement. To the extent permitted under Georgia law, the County agrees to indemnify, defend and hold BCI harmless from any and all obligations, losses, claims, damages, costs and expenses (including reasonable attorneys fees) of any kind or nature that may at any time be incurred by, imposed on or asserted against BCI arising or resulting from the use or exercise by the County of the rights granted it in this Agreement by BCI. The parties further agree that, as used in this Paragraph 4, the term BCI shall include BCI, its officers, directors, partners, shareholders, parent companies, subsidiaries, affiliated entities, contractors, agents, employees and each of their respective successors and assigns. This paragraph 4 shall survive the expiration or termination of this Agreement for any reason. This paragraph shall not be deemed or construed as a waiver of any kind of the County s position and opinion, or its ability to raise or assert as a defense, that it does not consider the indemnification and/or hold harmless provisions herein to be binding upon it under state law. Even though the provisions above are qualified with To the extent permitted under Georgia law..., it is understood that the County asserts that it is not authorized to any extent to indemnify or hold harmless BCI. 5. Insurance. The County asserts that it has adequate and sufficient means and resources as a political subdivision of the State of Georgia to protect its interests and obligations under this Agreement.. Permits. The County shall, in the name of the County, obtain and maintain all necessary licenses, permits, and approvals for the Permitted Activity at the County s sole cost and expense. 7. Grant Subject to Other Rights. This right of entry is made subject to any and all easements, rights of way, right of entries, licenses, restrictions, covenants, work spaces, oil and gas leases and/or servitudes, of whatever kind or nature, which may be presently of record, visible by a physical inspection of the BCI Property or previously granted by BCI. BCI shall notify the County in advance of any rights held by BCI or others which cause or may cause a conflict or which are or may be inconsistent with the right of entry granted to County by this Agreement. 8. Governing Law. This Agreement shall be governed by the laws of the State of Georgia as to interpretation, construction and performance. 9. Notices. Any notices sent in connection with this Agreement shall be delivered by (i) hand-delivery; (ii) certified or registered US Mail, return receipt requested; or (iii) nationally-recognized over-night courier, with all delivery charges paid by sender. Notice of hand-delivery shall be deemed to have been given at the time of actual delivery. Notice effected by U.S. Mail shall be deemed to have been given upon receipt or refusal thereof. Notice effected by overnight delivery shall be deemed to have been given one (1) business day after deposit with said courier service. All notices in connection with this Agreement shall be addressed as set forth below, provided however, either party may change its notice address at any time by providing written notice to the other party.
County: BCI: With Copy to: Glynn County Board of Commissioners 701 G Street, Historic Courthouse Brunswick, Georgia 31520 Attention: County Administrator Brunswick Cellulose, Inc. 133 Peachtree Street, N.E. Atlanta, Georgia 30303 Attn: Law Department Real Estate Brunswick Cellulose, Inc. 1400 West Ninth Street Brunswick, Georgia 31520 Attn: Public Affairs Manager 10. Entire Agreement. This Agreement constitutes the entire agreement between the parties regarding right of entry agreements with respect to the BCI Property, and supersedes any prior agreements either oral or in writing. 11. Counterparts; Original Copy. This Agreement may be executed in counterparts and each counterpart constitutes an original document. Each party hereto shall be authorized to rely upon the signatures of all of the parties hereto on this Agreement which are delivered by facsimile as constituting a duly authorized, irrevocable, actual, current delivery of this Agreement with original ink signatures of each person and entity. 12. Expiration. This Agreement shall expire automatically on the earlier of (i) the completion of the Permitted Activity or (ii) July 31, 2012. 13. No Warranties. BCI does not make any representations or warranties express or implied that the BCI Property can be used for any purpose whatsoever. 14. Severability. If any provision, or any portion thereof, contained in this Agreement is held unconstitutional, invalid or unenforceable, the remainder of this Agreement, or portion thereof, shall deemed severable, shall not be affected and shall remain in full force and effect. [SIGNATURES BEGIN ON FOLLOWING PAGE]
IN WITNESS WHEREOF, the undersigned duly authorized representatives of the parties hereto have executed and delivered this Agreement as of the date first above written. BCI: BRUNSWICK CELLULOSE, INC. By: Martin D. Agard Treasurer County: GLYNN COUNTY BOARD OF COMMISSIONERS By: Name: Its:
EXHIBIT A Location of Parcel Two