HomeMy WebLinkAbout11-01-10 PacketPage 1 of 4
Milton City Hall
City Council Chambers
13000 Deerfield Parkway, Suite E
Milton, GA 30004
Persons needing special accommodations in order to participate in any City
meeting should call 678-242-2500.
CITY OF MILTON, GEORGIA
Joe Lockwood, Mayor
CITY COUNCIL
Karen Thurman
Julie Zahner Bailey
Bill Lusk
Burt Hewitt
Joe Longoria
Alan Tart
Monday, November 1, 2010 Regular Council Meeting Agenda Immediately following the Work Session
INVOCATION – Reverend Patrick Abent, Inner Quest Church
CALL TO ORDER
1) ROLL CALL
2) PLEDGE OF ALLEGIANCE (Led by the Mayor)
3) APPROVAL OF MEETING AGENDA (Add or remove items from the agenda)
(Agenda Item No. 10-1273)
4) PUBLIC COMMENT
5) CONSENT AGENDA
1. Approval of the October 11, 2010 Work Session Meeting Minutes.
(Agenda Item No. 10-1274)
(Sudie Gordon, City Clerk)
2. Approval of a Conservation Easement Protecting 8.5 acres in Braeburn Subdivision
Assuring that in the Future this Property Retains its Present Natural, Scenic, Aesthetic,
Watershed, Wildlife, Forest and Habitat Condition. This Easement is provided pursuant
to the Conditions of Variance granted to the Wieland Development in V08-006.
Approval does not Require any Responsibility for Maintenance or Monitoring of this
Easement by the City.
(Agenda Item No. 10-1275)
(Lynn Tully, Community Development Director)
MILTON CITY COUNCIL REGULAR MEETING AGENDA NOVEMBER 1, 2010
Page 2 of 4
Milton City Hall
City Council Chambers
13000 Deerfield Parkway, Suite E
Milton, GA 30004
Persons needing special accommodations in order to participate in any City
meeting should call 678-242-2500.
3. Approval of an Engineering Services Agreement between the City of Milton, Georgia
and A&R Engineering, Inc. for Intersection Improvements at Cogburn Road and Bethany
Bend Road in the Amount of $13,900.00.
(Agenda Item No. 10-1276)
(Carter Lucas, Public Works Director)
4. Approval of a Construction Contract with Blount Construction Company, Inc. in the
Amount of $254,754.50 for a Joint Construction Project with Forsyth County to
Reconstruct McGinnis Ferry Road.
(Agenda Item No. 10-1277)
(Carter Lucas, Public Works Director)
6) REPORTS AND PRESENTATIONS (None)
7) FIRST PRESENTATION
1. Approval of an Ordinance Establishing Solid Waste Collection Services within the
City of Milton; Providing for the Scope and Nature of the Operation; Providing for
The Disposal of Garbage, Solid Waste and Refuse; Requiring the Execution by
Service Providers of a Non-Exclusive Agreement with the City of Milton; Providing
Procedures for the Handling of Complaints; Providing for an Infrastructure
Maintenance Fee; Requiring Indemnity Insurance; Providing for Revocation and
Amendment; Prohibiting Assignment and Subletting without Consent; Providing for
Forfeiture; and for Making Other Provisions.
(Agenda Item No. 10-1278)
(Matt Marietta, Fire Marshall)
2. RZ10-05/U10-01/VC10-03 – Deerfield Parkway (West Side) by Alpharetta Land
Partners to rezone from C-1 (Community Business) and O-I (Office-Institutional) to
C-1 (Community Business) with a Use Permit to construct a Special School for a
transitions vocational school for adult students at least eighteen years of age with
autism and an assisted living facility for autistic adults with 72 studios. The
applicant is also requesting a concurrent variance to:
1) Allow the exterior wall materials of all non-residential buildings and townhouse,
duplex and multifamily buildings to consist of a minimum of 65 percent in lieu of
75 percent (per vertical wall plane) of the following: brick or natural stone
[Section 64-1095(p)] for the assisted living facility;
MILTON CITY COUNCIL REGULAR MEETING AGENDA NOVEMBER 1, 2010
Page 3 of 4
Milton City Hall
City Council Chambers
13000 Deerfield Parkway, Suite E
Milton, GA 30004
Persons needing special accommodations in order to participate in any City
meeting should call 678-242-2500.
2) Allow accent building materials for all non-residential buildings and also
townhouse, duplex and multifamily units to be limited to a maximum of 35
percent in lieu of 25 percent brick, tile, non-reflective glass, natural stone and
weathered, polished or fluted face, with fluted, split-face, broken face finish,
Portland cement plaster and lath systems, architectural (either precast or tilt-up)
concrete (fluted or with exposed finish) or Hardi-Plank [Section 64-1095(q)] for
the assisted living facility;
3) Allow the following exterior siding colors as produced by Cabot Solid
stains to be permitted: Napa Vine, Newport Blue, Brickstone, Colonial
Yellow, [Section 64-1095(t)] for the assisted living facility.
(Agenda Item No. 10-1279)
(Lynn Tully, Community Development Director)
3. U10-02/VC10-04 – 13120 Arnold Mill Road by Frank Schaffer, The Landscape
Group, Inc. for Use Permit for a Landscaping Business (Section 64-1820) and a 4-
part concurrent variance in the existing buildings:
1) Beginning at a point on the west property line at the northwestern property
corner; to reduce a portion of the 50-foot buffer and 10-foot improvement setback
to 0 feet beginning at a point on the west property line at the northwestern
property corner for a total distance of 126 feet to a point on the west property line
located 126 feet south of the northwestern property corner (Section 64-1141.3.a);
2) Beginning at a point on the east property line located 40 feet south of the
northeastern property corner; to reduce a portion of the 50-foot buffer and 10-foot
improvement setback be reduced to a 30-foot undisturbed buffer with a 10-foot
improvement setback for a total distance of 98 feet to a point on the east property
line located 138 feet south of the northeastern property corner (Section 64-
1141.3.a);
3) To reduce the 50-foot building setback to a 44.09-foot setback for the warehouse
along the east property line [Section 64-1820(b)3];
4) To reduce the 50-foot building setback to a 47.58-foot setback for the warehouse
and a 28.25-foot setback for the steps to the office deck along the west property
line [Section 64-1820(b)3].
(Agenda Item No. 10-1280)
(Lynn Tully, Community Development Director)
8) PUBLIC HEARINGS (None)
MILTON CITY COUNCIL REGULAR MEETING AGENDA NOVEMBER 1, 2010
Page 4 of 4
Milton City Hall
City Council Chambers
13000 Deerfield Parkway, Suite E
Milton, GA 30004
Persons needing special accommodations in order to participate in any City
meeting should call 678-242-2500.
9) ZONING AGENDA (None)
10) UNFINISHED BUSINESS
1. Approval of An Ordinance to Amend Chapter 58, Utilities, of the City of Milton
Code of Ordinances to Establish Commercial Car Wash Water Recycling
Requirements; to Repeal Conflicting Provisions; To Provide for Severability; to
Provide for an Effective Date; and for Other Purposes.
(Agenda Item No. 10-1254)
(Discussed at September 13, 2010 Work Session)
(First Presentation on October 4, 2010 Council Meeting)
(Deferred at October 18, 2010 Council Meeting)
(Ken Jarrard, City Attorney)
11) NEW BUSINESS
1. Intergovernmental Agreement for the Provision of Information Technology Services
by and between the City of Johns Creek, Georgia and the City of Milton, Georgia.
(Agenda Item No. 10-1281)
(Chris Lagerbloom, City Manager)
12) MAYOR AND COUNCIL REPORTS
13) STAFF REPORTS
14) EXECUTIVE SESSION (If needed)
15) ADJOURNMENT
(Agenda Item No. 10-1282)
The minutes will be
Provided
electronically
City of Milton
13000 Deerfield Parkway, Suite 107 Milton, GA 30004
1
[Memo Braeburn Conservation Easement 102010]
To: Honorable Mayor and City Council Members
From: Lynn Tully, AICP, Community Development Director
Date: October 20, 2010, Submitted for the November 1, 2010, City Council
Regular Meeting.
Agenda Item: Approval of a Conservation Easement Protecting 8.5 acres in Braeburn
Subdivision Assuring that in the Future this Property Retains its Present Natural,
Scenic, Aesthetic, Watershed, Wildlife, Forest and Habitat Condition. This
Easement is provided pursuant to the Conditions of Variance granted to the
Wieland Development in V08-006.
CMO (City Manager’s Office) Recommendation:
The Mayor and City Council to approve and execute the attached Conservation Easement to
fulfill the required conditions of V08-006. Approval does not require any responsibility for
maintenance or monitoring of this easement by the city.
Background:
The Conditions of granting V08-006 included a variety of requirements for the development in
Crabapple. Among those requirements was the provision and execution of a conservation
easement for property within the subdivision to protect the natural conditions contained therein.
The proposed easement includes 8.5 acres.
Discussion:
Many conditions were placed on the approval for variances for Braeburn Subdivision prior to
development. Most of those conditions have or are in the process of being satisfied. Among
them is the requirement for a conservation easement. The attached easement has been
executed by all parties but the City Council and is identified by the attached plat. Execution by
signature of the Mayor will fulfill this condition. Please note that this approval does not obligate
the city for responsibility for maintenance or monitoring.
The easement has been reviewed in by City Staff and the City Attorney’s office. Attached is the
proposed easement as recommended by all bodies.
Alternatives:
The Mayor and City Council may choose to approve, deny or defer the conservation easement.
Concurrent Review:
Chris Lagerbloom, City Manager
Ken Jarrard, City Attorney
STATE OF GEORGIA
COUNTY OF FULTON
CONSERVATION EASEMENT
THIS INDENTURE ("Conservation Easement") is made as of the day of
, 20____, by and between John Wieland Homes and Neighborhoods, Inc., a
Georgia corporation, as party or parties of the first part (hereinafter called "Grantor"), and Braeburn
Neighborhood Association Inc., a Georgia corporation, as party or parties of the second part
(hereinafter called "Grantee") (the words "Grantor" and "Grantee" to include their respective heirs,
successors and assigns where the context requires or permits).
WITNESSETH:
WHEREAS, Grantor is the owner of all that tract or parcel of land lying and being in Land Lot
1097, 1098, 1135 of the 2n4 District, 2nd Section, Fulton County, Georgia, being more particularly
described in Exhibit "A" attached hereto and incorporated herein by this reference (hereinafter called
the "Easement Property"); and
WHEREAS, Grantor desires to grant to Grantee a natural area conservation easement to fulfill
all or part of the water quality requirements as provided in the City of Milton's Code of Ordinances,
and Grantor further desires to grant to the City of Milton, Georgia, a Georgia municipal corporation
("City"), enforcement rights hereunder; and
WHEREAS, Grantee is a corporate body empowered to hold an interest in real property under
the laws of the State of Georgia; and
WHEREAS, Grantee is a "qualified organization" within the meaning of Section 170(h) of the
Internal Revenue Code of 1986, as amended, as defined by Clause (v) of Section 170(b)(1)(A) and by
Section 170(c)(1); and
WHEREAS, Grantee is a qualified "holder" within the meaning of Official Code of Georgia
Annotated Section 44-10-2-(2)(A); and
WHEREAS, Grantee and the City, by the recording of this Conservation Easement, do hereby
accept the grant and dedication of the Easement Property to Grantee, and the rights and obligations
hereunder, per the terms hereinafter specified.
NOW, THEREFORE, in consideration of Ten Dollars ($10.00) and other good and valuable
consideration, the receipt and sufficiency of which are hereby acknowledged by all parties, Grantor has
donated, granted, remised, released and conveyed, and by these presents does hereby donate, grant,
remise, release and convey, unto Grantee a perpetual conservation easement in, to and through the
Easement Property, subject to the following terms, conditions, restrictions and reservations:
1. No building, billboard or advertising material, fence or other structure shall be erected
on the Easement Property, with the exception of drainage facilities constructed by Grantor, as
approved by Grantee and in accordance with City of Milton regulations
2. There shall be no dumping of soil, ashes, waste or other unsightly or offensive
material on the Easement Property, except as may be necessary in relation to the construction, use,
maintenance, repair and/or replacement of the aforementioned drainage facilities.
3. There shall be no excavation, dredging or removal of loam, gravel, soil, rock, sand or
other material, nor any building of roads or other change in the general topography of the land, except
as may be necessary in relation to (a) the maintenance of existing foot trails, fire lanes, farm roads or
other accesses, and/or (b) the construction, use, maintenance, repair and/or replacement of the
aforementioned drainage facilities.
4. There shall be no removal, destruction or cutting of trees, shrubs or other vegetation,
except as may be necessary for (a) the maintenance of existing foot trails, fire lanes, farm roads or
other accesses, (b) the prevention or treatment of disease, (c) other good husbandry practices approved
by Grantee, and/or (d) the construction, use, maintenance, repair and/or replacement of the
aforementioned drainage facilities.
5. No advertising of any kind or nature shall be located on or within the Easement
Property.
6. There shall be no activities, actions or uses detrimental or adverse to water
conservation, erosion control, soil conservation or fish and wildlife or habitat preservation, except as
may be necessary in relation to the construction, use, maintenance, repair and/or replacement of the
aforementioned drainage facilities.
7. Grantor and Grantee acknowledge and agree that Grantor retains and owns certain
property (hereinafter called the "Retained Property") located immediately adjacent to the Easement
Property. For the benefit of the Retained Property and Grantor and its successors and assigns, Grantor,
for itself and its successors and assigns, hereby reserves the right to continue to use the Easement
Property for all purposes not inconsistent with this Conservation Easement.
8. The general purpose of this Conservation Easement is to assure that in the future, there
is property that retains its present natural, scenic, aesthetic, watershed, wildlife, forest and habitat
condition, with exceptions as noted herein. Neither Grantor nor Grantee shall have the right to mine
the surface or subsurface of the Easement Property in compliance with Section 170(h)(5)(B) of the
Internal Revenue Code of 1986, as amended.
9. No representation is made by Grantee as to the tax implications to Grantor of this
transaction.
10. If a violation of the terms, conditions or restrictions of this Conservation Easement is
found to exist, the Grantee may, after a thirty (30) day written notice to the party then responsible for
compliance hereunder, institute suit to enjoin by ex parte, temporary and/or permanent injunction such
violation, to require the restoration of the Easement Property or portion thereof to its prior condition,
or for damages for breach of covenant. If the Grantee fails or refuses to take action as authorized
above, then the City and/or its successors and assigns may take such action.
11. The covenants, terms, conditions and restrictions of this Conservation Easement shall
be binding upon and shall inure to the benefit of the parties hereto and their respective heirs, executors,
2
administrators, personal representatives, successors and assigns, and shall continue as an easement and
servitude running with the Easement Property in perpetuity, enforceable by and against all present and
future owners, tenants and other holders of any interest in the Easement Property. Conveyance of the
Easement Property, whether as a whole or in portions thereof, shall also convey the rights, privileges,
duties and obligations contained in this Conservation Easement, regardless of whether or not specific
mention is made of this Conservation Easement and regardless of whether or not a specific conveyance
is made of, or subject to, the rights, privileges, duties and obligations herein. Thus, from and after
such time as the original Grantor (John Wieland Homes and Neighborhoods, Inc., a Georgia
corporation) no longer owns any of the Easement Property, all of the aforesaid responsibility for
compliance with and enforcement of this Conservation Easement shall be solely that of the Grantee
and the then owners of the Easement Property, or portions thereof, pursuant to and subject to the terms
and conditions herein, which means that from and after such time as said original Grantor no longer
owns any of the Easement Property, the City, Grantee and/or the then owners of the Easement Property
shall look to and/or sue only the then owners of the Easement Property, and not said original Grantor,
for compliance with or enforcement of this Conservation Easement.
12. Nothing contained herein will result in a forfeiture or reversion of Grantor's title in
any respect, and any condition, restriction or other matter contained herein shall be construed as a
covenant.
13. Grantee and the City, and their respective successors and assigns, do not waive or
forfeit the right to take action as may be necessary to ensure compliance with the terms, conditions and
purposes of this Conservation Easement by a failure to act.
14. Grantee and the City, and their respective successors and assigns, reserve the right to
enter the Easement Property at all reasonable times for the purpose of inspecting the Easement
Property to determine if the party or parties then responsible for compliance hereunder are complying
with the terms, conditions, restrictions and purposes of this Conservation Easement.
ki
IN WITNESS WHEREOF, Grantor has signed and sealed, and Grantee and the City, have
accepted this Conservation Easement as of the day and year first written above.
Signed, sealed and delivered
in the presence of:
WivKess
Notary Public
My commission
[NOTARIAL SEAT
Signed, sealed and delivered
in the presence of:
Witness
Notary Public
My commission expires:
[NOTARIAL SEAL]
Signed, sealed and delivered
in the presence of:
DAD
Notary Public
My commissi
[NOT.
John Wieland Homes and Neighborhoods, Inc., a
Georgia corporation
t::el�
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[CORPORATE SEAL]
ACCEPTED BY:
City of Milton, Georgia, a Georgia municipal
corporation
By:
Print Name:
Title:
Attest:
Print Name:
Title:
[SEAL]
ACCEPTED BY:
Braeburn Neighborhood Association, Inc., a
Georgia nonprofit corporation
By: L
Print
Title:
Attest: -
Print Name: •.J ' KA('h 0Q(_-
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EXHIBIT `°A"
EASEMENT PROPERTY
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City of Milton
13000 Deerfield Parkway Suite 107C Milton, Georgia 30004
To: Honorable Mayor and City Council Members
From: Carter Lucas, PE – Public Works Director
Date: November 1, 2010
Agenda Item: Approval of an Engineering Services Agreement between the City of Milton,
Georgia and A&R Engineering, Inc. for Intersection Improvements at Cogburn
Road and Bethany Road in the Amount of $13,900.00.
Background:
In coordination with the roadway improvements for the Fulton County Schools Bethany High
School project, the City will be designing and providing construction funds for the portion of
the intersection improvements outside of the school property.
Discussion:
The engineering services include survey, geometric design and signal design modification work
for the intersection improvements in coordination with the design provided for Fulton County
Schools.
A&R Engineering was the consultant that provided the design and construction plans for the
intersection improvements for Fulton County Schools. They will be coordinating the design of
all of the intersection improvements.
The budget for this work will be from Capital Project Fund, Bethany at Cogburn Intersection
Improvement.
Legal Review:
Attachments:
1. Agreement
City of Milton
ENGINEERING SERVICES AGREEMENT
INTERSECTION IMPROVEMENTS AT COGBURN ROAD AND BETHANY BEND
This Agreement made and entered into this L� day of in the year 2010, by and
between The City of Milton, Georgia (sometimes referred to herein as the "City"), having its principle place of
business at 13000 Deerfield Parkway Suite 107G, Milton GA 30004 and A&R Engineering, Inc. ("Consultant")
having its principle place of business at 2160 Kingston Court, Suite O, Marietta, Georgia 30067.
WHEREAS, the City of Milton will require certain professional public works services beginning on
October 1, 2010; and
WHEREAS, the City's Purchasing Policy authorizes the procurement of professional services contracts
of $30,000.00 or less; and
WHEREAS, the City has determined that this Agreement constitutes such professional services;
NOW THEREFORE, in consideration of the mutual covenant and promises contained herein, the parties
agree as follows:
1.0 Scope of Work; Compensation
The Consultant agrees to provide all Services specified in Exhibit "A," attached hereto and incorporated herein
by reference, for the compensation described therein. No payments will be made for unauthorized work.
Invoices should be submitted to Rick Pearce, 13000 Deerfield Parkway, Milton GA 30004, for approval.
Payment will be sent to the designated address by U. S. Mail only; payment will not be hand -delivered.
City agrees to pay Consultant for the services performed and costs incurred by Consultant upon the City's
certification that the services were actually performed and costs actually incurred in accordance with this
Agreement. Compensation for services performed and, if applicable, reimbursement for costs incurred shall be
paid to Consultant upon the City's receipt and approval of an invoice, submitted upon completion of the Work,
setting forth in detail the services performed and costs incurred. Invoices shall reflect charges incurred versus
charges budgeted. The total amount paid under this Agreement for the Work shall not, without prior written
approval from the city, exceed a lump sum fee of $13,900 (the "Contract Price"), plus a reimbursable allowance
of $300. Reimbursable expenses shall only be paid for actual costs incurred. Consultant shall submit invoices
for all reimbursable expenses. Consultant shall take no calculated risk in the performance of the Work.
Specifically, Consultant agrees that in the event it cannot perform the Work within the budgetary limitations
established without disregarding sound principles of Consultant's industry, Consultant will give written notice
thereof immediately to the City.
n
oCay of Mllton
2.0 Independent Contractor
2.1. The Consultant is an independent Contractor. The Consultant is not an employee, agent or
representative of the City of Milton. The Consultant shall obtain and maintain, at the Consultant's expense, all
permits, license or approvals that may be necessary for the performance of the services.
2.2 Inasmuch as the City of Milton and the Consultant are entities independent of one another, neither has
the authority to bind the other to any third person or otherwise to act in any way as the representative of the
other, unless otherwise expressly agreed to in writing signed by both parities hereto. The Consultant agrees not
to represent itself as the City's agent for any purpose to any party or to allow any employee of the Consultant to
do so, unless specifically authorized, in advance and in writing, to do so, and then only for the limited purpose
stated in such authorization. The Consultant shall assume full liability for any contracts or agreements the
Consultant enters into on behalf of the City of Milton without the express knowledge and prior written consent
of the City.
3.0 Indemnification
The Consultant covenants and agrees to take and assume all responsibility for the services rendered in
connection with this Agreement. The Consultant shall bear all losses and damages directly or indirectly
resulting to it on account of the performance or character of the services rendered pursuant to this Agreement.
Consultant shall, indemnify and hold harmless the City, its officers, boards, commissions, elected and appointed
officials, employees and agents from and against any and all claims, suits, actions, liability, judgments,
damages, losses, and expenses, including but not limited to, attorney's fees, which may be the result of willful,
negligent or tortuous conduct arising out of the Work, performance of contracted services, or operations by the
Consultant, any subconsultant, anyone directly or indirectly employed by the Consultant or subconsultant or
anyone for whose acts the Consultant or subconsultant may be liable, regardless of whether or not the offending
act is caused in part by a party indemnified hereunder. Such obligation shall not be construed to negate,
abridge, or otherwise reduce any other right or obligation of indemnity which would otherwise exist as to any
party or person described in this provision. In any and all claims against the City or any of its agents or
employees, by any employee of the Consultant, any subconsultant, anyone directly or indirectly employed by
the Consultant or subconsultant or anyone for whose acts the Consultant or subconsultant may be liable, the
indemnification obligation set forth in this provision shall not be limited in any way by any limitation on the
amount or type of damages, compensation or benefits payable by or for the Consultant or any subconsultant
under workers' or workmen's compensation acts, disability benefit acts or other employee benefit acts. This
obligation to indemnify the City, its members, officers, agents, employees and volunteers shall survive
termination of this Agreement.
4.0 Insurance
(1) Requirements:
The Consultant shall have and maintain in full force and effect for the duration of this
Agreement, insurance insuring against claims for injuries to persons or damages to
property which may arise from or in connection with the performance of the Work by the
Consultant, its agents, representatives, employees or subconsultants. All policies shall be
subject to approval by the City Attorney to form and content. These requirements are
subject to amendment or waiver if so approved in writing by the City Manager.
2
nry
(2) Minimum Limits of Insurance:
Consultant shall maintain limits no less than:
(a) Comprehensive General Liability of $1,000,000 combined single limit per occurrence for
bodily and personal injury, sickness, disease or death, injury to or destruction of property,
including loss of use resulting there from.
(b) Comprehensive Automobile Liability (owned, non -owned, hired) of $1,000,000
combined single limit per occurrence for bodily and personal injury, sickness, disease or
death, injury to or destruction of property, including loss of use resulting there from.
(c) Professional Liability of $1,000,000 per claim and aggregate limit for claims arising out
of professional services caused by the Consultant's errors, omissions, or negligent acts.
(d) Workers' Compensation limits as required by the State of Georgia and employers
Liability limits of $1,000,000 per accident.
(3) Deductibles and Self -Insured Retentions:
Any deductibles or self-insured retentions must be declared to and approved by the City.
(4) Other Insurance Provisions:
The policy is to contain, or be endorsed to contain, the following provisions (or equivalent):
(a) General Liability and Automobile Liability Coverage.
(i) The City, its officials, employees, agents and volunteers are to be covered as
insured as respects: liability arising out of activities performed by or on behalf of
the Consultant; products and completed operations of the Consultant; premises
owned, leased, or used by the Consultant; automobiles owned, leased, hired, or
borrowed by the Consultant. The coverage shall contain no special limitations on
the scope of protection afforded to the City, its officials, employees, agents or
volunteers.
(ii) The Consultant's insurance coverage shall be primary noncontributing insurance
as respects to any other insurance or self-insurance available to the City, its
officials, employees, agents or volunteers. Any insurance or self-insurance
maintained by the City, its officials, employees or volunteers shall be excess of
the Consultant's insurance and shall not contribute with it.
(iii) Any failure to comply with reporting provisions of the policies shall not affect
coverage provided to the City, its officials, employees, agents or volunteers.
(iv) Coverage shall state that the Consultant's insurance shall apply separately to each
insured against whom claim is made or suit is brought, except with respect to the
limits of the insurer's liability.
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(v) Coverage shall be provided on a "pay on behalf' basis, with defense costs payable
in addition to policy limits. There shall be no cross liability exclusion.
(vi) The insurer agrees to waive all rights of subrogation against the City, its officials,
employees, agents and volunteers for losses arising from work performed by the
Consultant for the City.
(vii) All endorsements to policies shall be executed by an authorized representative of
the insurer.
(b) Workers' Compensation Coverage.
The insurer will agree to waive all rights of subrogation against the City, its officials, employees,
agents and volunteers for losses arising from work performed by the Consultant for the City.
(c) All Coverages.
(i) Each insurance policy required by this clause shall be endorsed to state that
coverage shall not be suspended, voided, canceled, reduced in coverage or in
limits except after thirty (30) days prior written notice has been given to the City.
(ii) Policies shall have concurrent starting and ending dates.
(5) Acceptability of Insurers:
Insurance is to be placed with insurers with an A.M. Bests' rating of no less than ANII.
(6)
(7)
(8)
A
cityof Mifton
6
Verification of Coverage:
Consultant shall furnish the City with certificates of insurance and endorsements to the policies
evidencing coverage required by this clause prior to the start of work. The certificates of
insurance and endorsements for each insurance policy are to be signed by a person authorized by
that insurer to bind coverage on its behalf. The certificate of insurance and endorsements shall be
on a form utilized by Consultant's insurer in its normal course of business and shall be received
and approved by the City prior to execution of this Agreement by the City. The City reserves the
right to require complete, certified copies of all required insurance policies, at any time. The
Consultant shall provide proof that any expiring coverage has been renewed or replaced at least
one (1) week prior to the expiration of the coverage.
Subconsultants:
Consultant shall include all subconsultants as insured under its policies or shall furnish separate
certificates and endorsements for each subconsultant. All coverage for subconsultants shall be
subject to all of the requirements stated in this Agreement, including but not limited to naming
the parties as additional insured.
Claims -Made Policies:
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4KcK
Consultant shall extend any claims -made insurance policy for at least six (6) years after
termination or final payment under the Agreement, whichever is later.
(9) City as Additional Insured and Loss Pam
The City shall be named as an additional insured and loss payee on all policies required by this
Agreement.
5.0 Term; Termination
The term of this Agreement shall be from October 1, 2010 until March 31, 2011. Except as otherwise provided
for in Exhibit "A", the City may terminate this Agreement upon a breach of any provision of this Agreement by
Consultant and Consultant's subsequent failure to cure such breach within fifteen (15) days of receipt from the
City of a written notice of the breach..
6.0 Compliance with All Laws and Licenses
The Consultant must obtain all necessary licenses and comply with local, state and federal requirements. The
Consultant shall comply with all laws, rules and regulations of any governmental entity pertaining to its
performance under this Agreement. with the standard of care of consultant's profession.
7.0 Assignment
The Consultant shall not assign or subcontract the whole or any part of this Agreement without the City of
Milton's prior written consent.
8.0 Amendments in Writing
No amendments to this Agreement shall be effective unless it is in writing and signed by duly authorized
representatives of the parties.
9.0 Expertise of Consultant
Consultant accepts the relationship of trust and confidence established between it and the City, recognizing that
the City's intention and purpose in entering into this Agreement is to engage an entity with the requisite
capacity, experience, and professional skill and judgment to provide the services in pursuit of the timely and
competent completion of the Work undertaken by Consultant under this Agreement.
10.0 Governing Law
This Agreement shall be governed in all respects by the laws of the State of Georgia.
11.0 Interpretation of Documents
In the event of a conflict in language between this Agreement and any exhibit to this Agreement, the provisions
most favorable to the City shall govern.
12.0 Entire Agreement
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���1 ClryafMllton ' 1� `
This Agreement constitutes the entire Agreement between the parties with respect to the subject matter
contained herein; all prior agreements, representations, statements, negotiations, and undertakings are
suspended hereby. Neither party has relied on any representation, promise, nor inducement not contained
herein.
13.0 Waiver of Agreement
The City's failure to enforce any provision of this Agreement or the waiver in a particular instance shall not be
construed as a general waiver of any future breach or default.
14.0 Sovereign Immunity
Nothing contained in this Agreement shall be construed to be a waiver of the City's sovereign immunity or any
individual's qualified good faith or official immunities.
15.0 Notices
All other notices, writings or correspondence as required by this Agreement shall be 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 Parties at the addresses given below, unless
a substitute address shall first be furnished to the other Parties by written notice in accordance herewith:
NOTICE TO THE CITY shall be sent to:
City Manager
City of Milton
13000 Deerfield Parkway, Suite 107F
Milton, Georgia 30004
NOTICE TO THE CONSULTANT shall be sent to:
Abdul Amer, PE
A&R Engineering, Inc
2160 Kingston Court, Suite O
Marietta, GA 30067
16.0 No Personal Liability
No member, official or employee of the City shall be personally liable to the Consultant or any successor in
interest in the event of any default or breach by the City or for any amount which may become due to the
Consultant or successor or on any obligation under the terms of this Agreement. Likewise, Consultant's
performance of services under this Agreement shall not subject Consultant's individual employees, officers or
directors to any personal liability. The Parties agree that their sole and exclusive remedy, claim, demand or suit
shall be directed and/or asserted only against Consultant or the City, respectively, and not against any
employee, officer, director, or elected or appointed official.
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be duly executed by their duly
authorized officers as of the day and year set forth next to each signature.
Approved as to form:
City Attorney
A&R ENGINEERING, INC.:
Signature: �d�r o
Printed Name: P('f)'DUL �M^a'��
Title: , Member/Manager
SIGNED, SEALED, AND DELIVERED
in the presence of:
Wi ess
Not Public
[NOTARY SEAL]
My Commission Expires:
Pirr Ley 11 , 2016
CITY OF MILTON:
By:
Its:
SIGNED, SEALED, AND DELIVERED
in the presence of:
Witness
Notary Public
[NOTARY SEAL]
My Commission Expires:
r,
@t Ciy otMiltan
[CITY SEAL]
7
EXHIBIT "A"
SCOPE OF WORK
Provide professional transportation engineering and planning services to the City for the design of intersection
improvements at the intersection of Bethany Bend and Cogbum Road. Those services are more fully described
as follows:
TASK 1—SURVEY
In order to determine signal modification and prepare geometric designs, A&R will hire a sub consultant to
prepare a survey for us. The survey would include topographic information, property lines, drainage structures,
and location of utilities. This survey would be used as the basis for the construction drawings for all roadway
improvements discussed in this proposal. It includes the preparation of one plat, if necessary, for right-of-way
acquisition and /or easements.
TASK 2 —GEOMETRIC DESIGN
The scope of work under this task will be to design a short left turn lane on Bethany Bend, a separate through
lane, a right turn lane on the eastbound approach to the intersection at Cogbum Rd, and extend the southbound
left turn lane on Cogbum Road to provide 175 feet of full width storage. In addition, this design would include
a sidewalk modification which may require a right-of-way dedication from the adjacent property
owner. It should be noted that some striping work will be required on Bethany Bend east of Cogbum Rd. In
addition, A&R will design a sidewalk on the eastern end of the school property on Bethany Bend begimning
with the existing sidewalk and extending —50 ft. east. Plat and legal descriptions would not be included in this
task.
TASK 3 — SIGNAL DESIGN MODIFICATION
A traffic signal design modification will be prepared using survey information and roadway design plans. The
signal design modification will include relocation of signal equipment, signal poles, controller cabinet, vehicle
detection loops, phasing diagram, pavement marking, signing, and all other equipment layout and specifications
The construction plans will include grading, drainage, staking, erosion control plans, and utility relocation
plans. We will also include pavement marking and signing plan sheets. These plans will be prepared per the
requirements of the reviewing agencies.
nXIA
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City of Milton
13000 Deerfield Parkway Suite 107C Milton, Georgia 30004
To: Honorable Mayor and City Council Members
From: Carter Lucas, PE – Public Works Director
Date: October 19, 2010
Agenda Item: Approval of a Construction Contract with Blount Construction Company, Inc.
in the amount of $254,754.50 for a joint construction project with Forsyth
County to reconstruct McGinnis Ferry Road.
Background:
At the September 20, 2010 City Council meeting the city approved an IGA with Forsyth County
for the reconstruction of McGinnis Ferry Road from Bethany Bend to the city limit line (Item
#10-1242). The IGA requires the City of Milton to approve both the contractor and the form of
the agreement.
Discussion:
The City Limit/Forsyth County line runs down the middle of McGinnis Ferry Road from
Bethany Bend to the city limit. The condition of the road has failed to the extent that both the
city and the county recognize the need to reconstruct the road. In September 2010 the city and
county entered into an Intergovernmental Agreement (IGA) which would allow Forsyth County
to bid the project and complete the repairs to both sides of the road. As a condition of the IGA
Milton is required to approve both the selection of the contractor and the form of the agreement
to be used to complete the construction.
Forsyth County received three (3) bids for the construction work:
1. Blount Construction Company, Inc. $254,754.50
2. Stewart Brothers $290,702.25
3. Atlanta Paving and Concrete Construction $339,064.35
Forsyth County has recommended the contract be awarded to Blount Construction Company,
Inc. Staff has reviewed the bids and is in agreement with Forsyth County to award the
construction contract to Blount Construction Company, Inc. in the amount of $254,754.50. The
city would be responsible for 50% of these costs or $127,377.25. The current budget amount for
this project is $150,000.00.
Staff recommends approval of the contractor and agreement as presented herein.
Legal Review:
Paul Higbee, Jarrard & Davis on October 25, 2010
Attachments:
1. Sample agreement from Forsyth County
1
FIXED PRICE AGREEMENT BETWEEN
OWNER AND CONTRACTOR
SAMPLE
Project # 10-68-3150
P.O. #
This Agreement is made by and between Forsyth County, a political subdivision of the State
of Georgia, (hereinafter referred to as the "Owner") and (hereinafter referred to as the "Contractor")
under seal for all work called for in that certain Forsyth County Project Number #10 -68-3150. All work to
be in accordance with Forsyth County Specifications and Standards, as well as State of Georgia
Department of Transportation Specifications.
ARTICLE 1
THE CONTRACT AND THE CONTRACT DOCUMENTS
1.1 The Contract
The Contract between the Owner and the Contractor, of which this Agreement is a part,
consists of the Contract Documents. It shall be effective on the date this Agreement is executed by the
last party to execute it.
1.2 The Contract Documents
1.2.1 The Contract Documents consist of this Agreement, the Specifications (including those set
forth in the Owner's invitation to bid on the project), Contractor's Bi d Schedule, the Drawings, all Change
Orders and Field Orders issued hereafter, and any other amendments hereto executed by the parties’
hereafter. Documents not enumerated in this paragraph are not Contract Documents and do not form
part of this Contract.
1.3 Entire Agreement
1.3.1 This Contract, together with the Contractor's payment bond for the Project, constitutes the
entire and exclusive agreement between the Owner and the Contractor with reference to the Project.
1.4 No Privity with Others
1.4.1 Nothing contained in this Contract shall create, or be interpreted to create, privity or any
other contractual agreement between the Owner and any person or entity other than the Contractor.
1.5 Intent and Interpretation
1.5.1 The intent of this Contract is to require complete, correct and timely execution of the Work.
Any work that may be required, implied or inferred by the Contract Documents, or any one or more of
them, as necessary to produce the intended result shall be provided by the Contractor for the Contract
Price.
1.5.2 This Contract is intended to be an integral whole and shall be interpreted as internally
consistent. What is required by any one Contract Document shall be considered as required by the
Contract.
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1.6 Ownership of Contract Documents
1.6.1 The Contract Documents, and each of them, shall remain the property of the Owner. The
Contractor shall have the right to keep one record set of the Contract Documents upon completion of the
Project; provided, however, that in no event shall C ontractor use, or permit to be used, any or all of such
Contract Documents on other projects without the Owner's prior written authorization.
ARTICLE II
THE WORK
2.1 The Contractor shall perform all of the Work required, implied or reasonably inferable from,
this Contract, all in accordance with plans, specifications and drawings of the Project and in accordance
with the bid and specifications as outlined in Bid Number # 10-68-3150.
2.2 The term "Work" shall mean whatever is done by or required of the Contractor to perform
and complete its duties under this Contract, including the following: construction of the whole or a
designated portion of the Project; furnishing of any required bonds and insurance; provision of required
certifications and documentation of associated testing results; provision or furnishing of labor,
supervision, services, materials, supplies, equipment, fixtures, appliances, facilities, tools, transportation,
storage, power, permits and licenses required of the Contractor, fuel, heat, light, cooling and all other
utilities as required by this Contract. The work to be performed by the Contractor is generally described
as follows:
ARTICLE III
CONTRACT TIME
3.1 Time and Liquidated Damages
3.1.1 The Contractor shall complete the work within thirty (30) calendar days of issuance of Notice
to Proceed.
3.1.2 The Contractor shall pay the Owner the sum of $500.00 per day for each and every ca lendar
day of delay not excused by Section 8.2.5.1 in achieving completion beyond the time set forth herein for
completion of the work. Any sums due and payable hereunder by the Contractor shall be payable, not as
a penalty, but as liquidated damages representing an estimate of delay damages likely to be sustained by
the Owner, estimated at or before the time of executing this Contract. When the Owner reasonably
believes that completion will be inexcusably delayed, the Owner shall be entitled, but not req uired, to
withhold from any amounts otherwise due the Contractor an amount then believed by the Owner to be
adequate to recover liquidated damages applicable to such delays. If and when the Contractor
overcomes the delay in achieving completion, or any part there, for which the Owner has withheld
payment, the Owner shall promptly release to the Contractor those funds withheld, but no longer
applicable, as liquidated damages.
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3.2 Substantial Completion
3.2.1. "Substantial Completion" shall mean that state in the progression of the Work when the Work
is sufficiently complete in accordance with this Contract that the Owner can enjoy beneficial use or
occupancy of the work and can utilize the work for its intended purpose.
3.3 Time is of the Essence
3.3.1 All limitations of time set forth in the Contract Documents are of the essence of this Contract.
ARTICLE IV
CONTRACT PRICE
4.1 The Contract Price
The Owner shall pay, and the Contractor shall accept, as full and complete payment for all of the work
required herein, the fixed sum of . Said sum consists of furnishing all materials, labor and equipment
necessary to complete reclamation as detailed in bid documents and as shown on Bid Schedule. The
sum set for in this Paragraph 4.1.1 shall constitute the Contract Price which shall not be modified except
by Change Order as provided in this Contract.
ARTICLE V
PAYMENT OF THE CONTRACT PRICE
5.1 Payment Procedure
5.2.1 Based upon the Contractor's applications and certificates for payment issued to the Owner,
Owner shall make progress payments to the Contractor on account of the Contract Price.
5.2.2 On or before the tenth day of each month after commencement of the work, the Contractor
shall submit an Application for Payment for the period ending the l ast day of the prior month to the
Owner in such form and manner, and with such supporting data and content, as the Owner may require.
Therein, the Contractor may request payment for ninety five percent (95%) of that portion of the
Contract Price properly allocable to Contract requirements properly provided, i.e., labor, materials and
equipment properly incorporated in the work plus ninety five percent (95%) of that portion of the
Contract Price properly allocable to materials or equipment incorporated in the work, less the total
amount of previous payments received from the Owner. Such Application for Payment shall be signed by
the Contractor and shall constitute the Contractor's representation that the work has been properly
performed in full accordance with this Contract. When Owner determines amounts requested to be
properly owing to the Contractor, the Owner shall make partial payments on account of the Contract
Price to the Contractor on or before the 25th day of each month in which application for payment is
made.
5.2.3 The Contractor warrants that upon submittal of an Application for Payment, all work for which
payments have been received from the Owner shall be free and clear of liens, claims, security interest or
other encumbrances in favor of the Contractor or any other person or entity whatsoever. The Contractor
shall promptly pay each Subcontractor out of the amount paid to the Contractor on account of such
Subcontractor's work, the amount to which such Subcontractor is entitled. In the event t he Owner
becomes informed that the Contractor has not paid a Subcontractor as herein provided, the Owner shall
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have the right, but not the duty, to issue future checks in payment to the Contractor of amounts
otherwise due hereunder naming the Contractor and such Subcontractor as joint payees.
5.2.4 No progress payment, nor any use or occupancy of the Project by the Owner, shall be
interpreted to constitute an acceptance of any work not in strict accordance with this Contract.
5.3 Withheld Payment
5.3.1 The Owner may decline to make payment, may withhold funds, and, if necessary, may
demand the return of some or all of the amounts previously paid to the Contractor, to protect the Owner
from loss because of:
(a) Defective work not remedied by the Contractor;
(b) Claims of third parties against the Owner;
(c) Failure by the Contractor to pay Subcontractors or others in a prompt and
proper fashion;
(d) Evidence that the balance of the work cannot be completed in accordance
with the Contract for the unpaid balance of the Contract Price;
(e) Evidence that the work will not be completed in the time required for
substantial or final completion;
(f) Persistent failure to carry out the work in accordance with the Contract.
(g) Damage to the Owner or a third party to whom the Owner is, or may be,
liable.
5.4 Completion and Final Payment
5.4.1 When all of the work is finally complete and the Contractor is ready for a final inspection, it
shall notify the Owner thereof in writing. Thereupon, the Owner will make final ins pection of the work
and, if the work is complete in full accordance with this Contract and this Contract has been fully
performed, the Owner will promptly issue a final Certificate for Payment certifying to the Owner that the
Project is complete and the Contractor is entitled to the remainder of the unpaid Contract Price, less any
amount withheld pursuant to this Contract.
5.4.2 The Contractor shall not be entitled to final payment unless and until it submits to the
Purchasing Department its affidavit that all payrolls, invoices for materials and equipment, and other
liabilities connected with the work for which the Owner, or the Owner's property might be responsible,
have been fully paid or otherwise satisfied; releases and waivers of lien from all Subcontractors of the
Contractor and of any and all other parties required by the Engineer or the Owner; consent of Surety to
final payment. If any third party fails or refuses to provide a release of claim or waiver of lien as required
by the Owner, the Contractor shall furnish a bond satisfactory to the Owner to discharge any such lien or
indemnify the Owner from liability.
5.4.3 The Owner shall make final payment of all sums due the Contractor within ten (10) days of
the Engineer's execution of a final Certificate for Payment.
5.4.4 Acceptance of final payment shall constitute a waiver of all claims against the Owner by the
Contractor except for those claims previously made in writing against the Owner by the Contractor,
pending at the time of final payment, and identified in writing by the contractor as unsettled at the time
of its request for final payment.
5.4.5 Payment shall be made at the unit rates as set out in the Bid Schedule submitted by the
Contractor for the Work for the quantities actually inst alled into the Work except as follows:
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(a) There are no exceptions.
ARTICLE VI
THE OWNER
6.1 Information, Services and Things Required From Owner
6.1.1 The Owner shall furnish to the Contractor, at the time of executing this Contract, any and all
written and tangible material in its possession that are necessary to facilitate the completion of this
project in a timely manner, if any.
6.1.2 Excluding permits and fees normally the responsibility of the Contractor, the Owner shall
obtain all approvals, easements, and the like required for construction.
6.1.3 The Owner shall furnish the Contractor, free of charge, three copies of the Contract
Documents for execution of the Work.
6.2 Right to Stop Work
6.2.1 If the Contractor persistently fails or refuses to perform the work in accordance with this
Contract, the Owner may order the Contractor to stop the work, or any described portion
thereof, until the cause for stoppage has been corrected, no longer exists, or the Owner
orders that work be resumed. In such event, the Contractor shall immediately obey such
order. The stop work order referenced herein must be in writing and must specify in detail
the alleged failure of the Contractor in accordance with the contract documents.
6.3 Owner's Right to Perform Work
6.3.1 If the Contractor's work is stopped by the Owner under Paragraph 6.2, and the Contractor
fails within seven (7) days of such stoppage to provide adequate assurance to the Owner that
the cause of such stoppage will be eliminated or corrected, then the Ow ner may, without
prejudice to any other rights or remedies the Owner may have against the Contractor,
proceed to carry out the subject work. In such a situation, an appropriate Change Order
shall be issued deducting from the Contract Price the cost of correcting the subject
deficiencies, plus compensation for the Engineer's additional services and expenses
necessitated thereby, if any. If the unpaid portion of the Contract Price is insufficient to
cover the amount due the Owner, the Contractor shall pay t he difference to the Owner.
ARTICLE VII
THE CONTRACTOR
7.1 The Contractor shall perform the work strictly in accordance with this Contract.
7.2 The Contractor shall supervise and direct the work using the Contractor's best skill, effort and
attention. The Contractor shall be responsible to the Owner for any and all acts or omissions of the
Contractor, its employees and others engaged in the work on behalf of the Contractor.
7.3 Warranty
6
7.3.1 The Contractor warrants to the Owner that all labor furnished to progress the work under this
Contract will be competent to perform the tasks undertaken, that the product of such labor will yield only
first-class results, that materials and equipment furnished will be of good quality and new unless
otherwise permitted by this Contract, and that the work will be of good quality, free from faults and
defects and in strict conformance with this Contract. All work not conforming to these requirements may
be considered defective.
7.4 The Contractor shall obtain and pay for all permits, fees and licenses necessary and ordinary
for the work. The Contractor shall comply with all lawful requirements applicable to the work and shall
give and maintain any and all notices required by applicable law pertaining to the work.
7.5 Supervision
7.5.1 The Contractor shall employ and maintain at the Project site only competent supervisory
personnel. Absent written instruction from the Contractor to the contrary, the superintendent shall be
deemed the Contractor's authorized representative at the site and shall be authorized to receive and
accept any and all communications from the Owner.
7.6 Cleaning the Site and the Project
7.6.1 The Contractor shall keep the site reasonably clean during performance of the work. Upo n
final completion of the work, the Contractor shall clean the site and the Project and remove all waste,
together with all of the Contractor's property therefrom.
7.7 Access to Work
7.7.1 The Owner and the Engineer shall have access to the work at all times from commencement
of the work through final completion. The Contractor shall take whatever steps necessary to provide
access when requested.
7.8 Indemnity
7.8.1 To the fullest extent permitted by law, the Contractor shall indemnify and hold harmless the
Owner from and against liability, claims, damages, losses and expenses, including attorneys' fees, arising
out of or resulting from performance of the work, provided that such liability, claims, damage, loss or
expense is attributable to bodily injury, sickness, disease or death, or to injury to or destruction of
tangible property (other than the work itself) including loss of use resulting therefrom, but only to the
extent caused in whole or in part by negligent acts or omissions of the Contractor, a Subcontractor,
anyone directly or indirectly employed by them or anyone for whose acts they may be liable.
7.8.2 In claims against any person or entity indemnified under this Paragraph 7.8 by an employee
of the Contractor, a Subcontractor, any one directly or indirectly employed by them or anyone for whose
acts they may be liable, the indemnification obligation under this Paragraph 7.8 shall not be limited by a
limitation on amount or type of damages, compensation or benefits payable by or for the Contractor or a
Subcontractor under workers' compensation acts, disability benefit acts or other employee benefit acts.
7
ARTICLE VIII
CONTRACT ADMINISTRATION
8.1 Administration
8.1.1 The Forsyth County Department of Engineering shall be the Owner's representative
from the effective date of this Contract until final payment has been made for work site operations. Any
and all change orders must be submitted through the Forsyth County Department of Purchasing.
8.1.2. The Owner and the Contractor shall communicate with each other in the first instance
through the Forsyth County Department of Engineering.
8.1.3 The Owner's Representative shall be the initial interpreter of the requirements of the
drawings and specifications and the judge of the performance thereunder by the Contractor.
8.1.4 The Owner's Representative shall have authority to reject work that is defective or does not
conform to the requirements of this Contract.
8.1.5 The Owner's Representative will review the Contractor's Applications for Payment and will
certify those amounts then due the Contractor as provided in this Contract. All invoices are to be
submitted to the attention of the Purchasing Department.
8.1.6 The Owner's Representative, shall, upon request from the Contractor, conduct inspections to
determine the date of final completion, will receive records, written warranties and rela ted documents
required by this contract and will issue a final Certificate for Payment upon compliance with the
requirements of this Contract.
8.2 Claims by the Contractor
8.2.1 All Contractor claims shall be initiated by written notice and claim to the Owner attention the
Purchasing Department. Such written notice and claim must be furnished within seven (7) days after
occurrence of the event, or the first appearance of the condition, giving rise to the claim.
8.2.2 Pending final resolution of any claim of the Contractor, the Contractor shall diligently proceed
with performance of this Contract and the Owner shall continue to make payments to the Contractor in
accordance with this Contract. The resolution of any claim under this paragraph 8.3 shall be re flected by
a Change Order executed by the Owner and the Contractor.
8.2.3 Claims for Concealed and Unknown Condition - Should concealed and unknown
conditions encountered in the performance of the Work (a) below the surface of the ground or (b) in an
existing structure be at variance with the conditions indicated by this Contract, or should unknown
conditions of an unusual nature differing materially from those ordinarily encountered in the area and
generally recognized as inherent in Work of the character provided for in this Contract, be encountered,
the Contract Price shall be equitably adjusted by Change Order upon the written notice and claim by
either party made within seven days after the first observance of the condition. As a condition precedent
to the Owner having any liability to the Contractor for concealed or unknown conditions, the Contractor
must give the Owner written notice of, and an opportunity to observe, the condition prior to disturbing it.
The failure by the Contractor to make the written notice and claim as provided in this Subparagraph shall
8
constitute a waiver by the Contractor of any claim arising out of or relating to such concealed or unknown
condition.
8.2.4 Claims for Additional Costs - If the Contractor wishes to make a claim for an increase in
the Contract Price, as a condition precedent to any liability of the Owner therefore, the Contractor shall
give the Owner written notice of such claim within seven days after the occurrence of the event, or the
first appearance of the condition, giving rise to such claim. Such notice shall be given by the Contractor
before proceeding to execute any additional or changed Work. The failure by the Contractor to give such
notice and to give such notice prior to executing the Work shall constitute a waiver of any claim for
additional compensation.
8.2.4.1 In connection with any claim by the Contractor against the Owner for compensation in
excess of the Contract Price, any liability of the Owner for the Contractor's costs shall be strictly limited to
direct costs incurred by the Contractor and shall in no event include indirect costs or consequential
damages of the Contractor. The Owner shall not be liable to the Contractor for claims of third parties,
including Subcontractors, unless and until liability of the Contractor has been established therefor in a
court of competent jurisdiction.
8.2.5 Claims for Additional Time
8.2.5.1 If the Contractor is delayed in progressing any task which at the time of delay is then critical
or which during the delay becomes critical, as the sole result of any act or neglect to act by the Owner or
someone acting in the Owner's behalf, or by changes ordered in the work, unusual delay in
transportation, unusually adverse weather conditions not reasonably anticipated, fire or any causes
beyond the Contractor's control, then the date for achieving completion of the work shall be extended
upon the written notice and claim of the Contractor to the Owner’s Purchasing Department for such
reasonable time as the Owner's representative may determine. Any notice and claim for an extension of
time by the Contractor shall be made not more than fifteen (15) days after the occurrence of the event or
the first appearance of the condition giving rise to the claim and shall set forth in detail the Contractor's
basis for requiring additional time in which to complete the Project.
8.2.6 Claims for Weather Delays
8.2.6.1 Claims for weather delays shall not be considered unless work is not feasible for more than
one-half of a day due to weather conditions. Claims for weather delays shall not be considered for
Sundays unless the Contractor consistently works on Sundays prior to the claim. Claims for weather must
be submitted within four weeks of the requested delay time.
ARTICLE IX
CHANGES IN THE WORK
9.1 Changes Permitted
9.1.1 Changes in the work within the general scope of this Contract, consisting of additions,
deletions, revisions, or any combination thereof, may be ordered without invalidating this Contract, by
Change Order. Change Orders are to be issued through the Forsyth County Department of Purchasing,
with the County Administrator signature required as authorization.
9.1.2 Changes in the work shall be performed under applicable provisions of this Contract and the
Contractor shall proceed promptly with such changes.
9
9.2 Change Order Defined
9.2.1 Change Order shall mean a written order to the Contractor executed by the Owner, issued
after execution of this Contract, authorizing and directing a change in the work or an adjustment in the
Contract Price or the Contract Time. The Contract Price and the Contract Time may be changed only by
Change Order.
9.3 Changes in the Contract Price
9.3.1 Any change in the Contract Price resulting from a Change Order shall be determined as
follows: (a) by mutual agreement between the Owner and the Contractor as evidenced by (1) the
change in the Contract Price being set forth in the change Order, (2) such change in the contract Price,
together with any conditions or requirements related thereto, being initialed by both parties and (3) the
Contractor's execution of the Change Order, or (b) if no mutual agreement occurs between the Owner
and the Contractor, then as provided in Subparagraph 9.3.2 below.
9.3.2 If no mutual agreement occurs between the Owner and the contractor as contemplated in
Subparagraph 9.3.1 above, the change in the Contract Price, if any, shall then be determined by the
Owner on the basis of the reasonable expenditures or savings of those performing, deleting or revising
the work attributable to the change, including, in the case of an increase or decrease in the Contract
Price, a reasonable allowance for direct job site overhead and profit. In such case, the Contractor shall
present, in such form and with such content as the Owner requires, an itemized accounting of such
expenditures or savings, plus appropriate supporting data for inclusion in a Change Order.
9.3.3 If unit prices are provided in the Contract, and if the quantities contemplated are so changed
in a proposed Change Order that application of such unit prices to the quantities of Work proposed will
cause substantial inequity to the Owner or to the Contractor, the applicable unit prices shall be equitably
adjusted.
ARTICLE X
CONTRACT TERMINATION
10.1 Termination by the Contractor
10.1.1 If the work is stopped for a period of ninety (90) days by an order of any court or other
public authority, or as a result of an act of the Government, through no fault of the Contractor or any
person or entity working directly or indirectly for the Contractor, the Contractor may, upon ten (10) days'
written notice to the Owner, terminate performance under this contract and recover from the Owner
payment for the actual reasonable expenditures of the Contractor for all work executed.
10.1.2 If the Owner shall persistently or repeatedly fail to perform any material obligation to the
Contractor for a period of thirty (30) days after receiving written notice from the Contractor of its intent
to terminate hereunder, the Contractor may terminate performance under this Contract by written notice
to the Owner. In such event, the Contractor shall be entitled to recover from the Owner as though the
Owner had terminated the Contractor's performance under this Contract for convenience pursuant to
Subparagraph 10.2.1.
10.2 Termination by the Owner
10
10.2.1 For Convenience
10.2.1.1 The Owner may for any reason whatsoever terminates performance under this Contract by
the contractor for convenience. The Owner shall give written notice of such termination to the Contractor
specifying when termination becomes effective.
10.2.1.2 The Contractor shall incur no further obligations in connection with the work and the
Contractor shall stop work when such termination becomes effective. The Contractor shall also terminate
outstanding orders and subcontracts. The Contractor shall settle the liabilities and cl aims arising out of
the termination of subcontracts and orders. The Owner may direct the Contractor to assign the
Contractor's right; title and interest under terminated orders or subcontracts to the Owner or its
designee.
10.2.1.3 The Contractor shall transfer title and deliver to the Owner such completed or partially
completed work and materials, equipment, parts, fixtures, information and Contract rights as the
Contractor has.
10.2.1.4
(a) The Contractor shall submit a termination claim to the Owner specifying the amounts
due because of the termination for convenience together with costs, pricing or other
data required by the Owner. If the Contractor fails to file a termination claim within
one (1) year from the effective date of termination, the Owner shall pay the
Contractor, an amount derived in accordance with subparagraph (c) below.
(b) The Owner and the Contractor may agree to the compensation, if any, due to the
Contractor hereunder.
(c) Absent agreement to the amount due to the contractor, the Owner shall pay the
Contractor the following amounts:
(i) Contract prices for labor, materials, equipment and other services accepted under this
Contract;
(ii) Reasonable costs incurred in preparing to perform and in performing the terminated
portion of the work, and in terminating the Contractor's performance, plus a fair and reasonable
allowance for overhead and profit thereon (such profit shall not include anticipated profit or consequential
damages); provided however, that if it appears that the Contractor would have not profited or would
have sustained a loss if the entire Contract would have been completed, no profit shall be allowed or
included and the amount 0of compensation shall be reduced to reflect the anticipated rate of loss, if any;
(iii) Reasonable costs of settling and paying claims arising out of the termination of
subcontracts or orders pursuant to Subparagraph 10.2.1.2 of this Paragraph. These costs shall not
include amounts paid in accordance with other provisions hereof.
The total sum to be paid the Contractor under this Subparagraph 10.2.1 shall not exceed the
total Contract Price, as properly adjusted, reduced by the amount of payments otherwise made, and shall
in no event include duplication of payment.
10.2.2 For Cause
10.2.2.1 If the Contractor persistently or repeatedly refuses or fails to prosecute the work in a timely
manner, supply enough properly skilled workers, supervisory personnel or proper equipment or materials,
or if it fails to make prompt payment to Subcontractors or for materials or labor, or persistently
disregards laws, ordinances, rules, regulations or orders of any public authority having jurisdiction, or
otherwise is guilty of a substantial violation of a material provision of this Contract, then the Owner may
11
by written notice to the Contractor, without prejudice to any other right or remedy, terminate the
employment of the contractor and take possession of the site and of all materials, equipm ent, tools,
construction equipment and machinery thereon owned by the Contractor and may finish the work by
whatever methods it may deem expedient. In such case, the Contractor shall not be entitled to receive
any further payment until the work is finished.
10.2.2.2 If the unpaid balance of the Contract Price exceeds the cost of finishing the work, such
excess shall be paid to the Contractor. If such costs exceed the unpaid balance, the Contractor shall pay
the difference to the Owner. This obligation for payment shall survive the termination of the Contract.
10.2.2.3 In the event the employment of the Contractor is terminated by the Owner for cause
pursuant to subparagraph 10.2.2 and it is subsequently determined by a Court of competent jurisdiction
that such termination was without cause, such termination shall thereupon be deemed a Termination for
Convenience under Subparagraph 10.2.1 and the provisions of Subparagraph 10.2.1 shall apply.
ARTICLE XI
INSURANCE
11.1 Contractor's Insurance Requirements
11.1.1 The Contractor shall maintain in full force and effect at all times during the Contract period
Comprehensive General Liability Insurance in an amount equal to One Million ($1,000,000.00) Dollars.
11.1.2 The Contractor shall provide to the Owner Certificates of Insurance naming the Owner as
additional insured party under the policy or policies of Comprehensive General Liability Insurance
required by Paragraph 11.1.1.
11.1.3 The insurance policy or policies as aforesaid shall provide that thirty (30) days written notice
be given to the Owner prior to cancellation thereof.
11.1.4 The Contractor shall maintain in full force and effect at all times during the Contract period
Workers' Compensation Insurance as provided by Georgia law.
ARTICLE XII
MISCELLANEOUS
12.1 Governing Law
12.1.1 The Contract shall be governed by the laws of the State of Georgia.
12.2 Successors and Assigns
12.2.1 The Owner and Contractor bind themselves, their successors, assigns and legal
representatives to the other party hereto and to successors, assigns and legal representatives
of such other party in respect to covenants, agreements and obligations contained in this
Contract. The Contractor shall not assign this Contract without written consent of the Owner.
12.3 Surety Bonds
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12.3.1 The Contractor shall furnish separate performance and payment bonds to the Owner. Each bond
shall set forth a penal sum in an amount not less than the contract price. Each bond furnished by the
Contractor shall incorporate by reference the terms of this Contract as fully as though they were set
forth verbatim in such bonds. In the event the Contract Price is adjusted by Change Order executed by
the Contractor, the penal sum of both the performance bond and the payment bond shall be deemed
increased by like amount. Thee performance and payment bonds furnished by the Contractor shall be in
form suitable to the Owner and shall be executed by a surety, or sureties, reasonably suitable to the
Owner.
IN WITNESS WHEREOF, the Undersigned have set their hands and seals on the day and date
appearing below the signatures of their authorized representatives.
FORSYTH COUNTY, A Political Subdivision
Of the State of Georgia a Georgia Corporation
by by
City of Milton
13000 Deerfield Parkway, Milton, Georgia 30004
1
To: Honorable Mayor and City Council Members
From: Matt Marietta
Date: Submitted on October 19, 2010 for First Presentation at the November 1, 2010
Regular Council Meeting and the November 15, 2010 Regular Council Meeting
for its Second Reading
Agenda Item: Annual Re-enactment of the Ordinance Approving and Establishing the
Regulation of Solid Waste Collection Services within the City of Milton, and
Providing for the Scope and Nature of the Operation of Such Services
City Manager’s Office Recommendation
Re-approve the ordinance approving and establishing the regulation of solid waste collection
services within the City of Milton, and direct City Staff to facilitate the contracting of such
services to providers currently in operation and those who may become in operation.
Background
The original ordinance was passed on November 21, 2006 and has been renewed each
successive year since its original enactment. The City’s authority to enter into solid waste
franchise agreements emanates from this ordinance.
Discussion
This ordinance needs to be re-enacted each year in order to continue the validity of our solid
waste franchise agreements. Over the past year, all of the current Haulers on the approved list
have affirmed their desire to remain active in the City of Milton. Additionally, as of the date of
this memo, all of the active Haulers are current with the infrastructure maintenance fee and
have been provided with a copy of the ordinance and/or directed to city website which links the
ordinance from the Solid Waste Management homepage.
Funding and Fiscal Impact
The ordinance contains the requirement for an infrastructure maintenance fee to be paid to the
City quarterly in the amount of 5% of gross revenues. The impact to residential constituents has
been less than one dollar ($1.00) per month. Further, this revenue is dedicated to the
maintenance of infrastructure, primarily the resurfacing of roadways.
Alternatives
If not re-enacted, the City would lose its authority to regulate solid waste collection within our
corporate limits and the ability to collect franchise fees for the same activity, with the
accompanying loss of revenue.
City of Milton
13000 Deerfield Parkway, Milton, Georgia 30004
2
Concurrent Review
Chris Lagerbloom, City Manager
Page 1 of 14
ORDINANCE NO.
CITY OF MILTON
COUNTY OF FULTON
STATE OF GEORGIA
AN ORDINANCE ESTABLISHING SOLID WASTE COLLECTION SERVICES WITHIN THE
CITY OF MILTON; PROVIDING FOR THE SCOPE AND NATURE OF THE OPERATION;
PROVIDING FOR THE DISPOSAL OF GARBAGE, SOLID WASTE AND REFUSE;
REQUIRING THE EXECUTION BY SERVICE PROVIDERS OF A NON-EXCLUSIVE
AGREEMENT WITH THE CITY OF MILTON; PROVIDING PROCEDURES FOR THE
HANDLING OF COMPLAINTS; PROVIDING FOR AN INFRASTRUCTURE MAINTENANCE
FEE; REQUIRING INDEMNITY INSURANCE; PROVIDING FOR REVOCATION AND
AMENDMENT; PROHIBITING ASSIGNMENT AND SUBLETTING WITHOUT CONSENT;
PROVIDING FOR FORFEITURE; AND FOR MAKING OTHER PROVISIONS.
WHEREAS, several companies (“Company”) currently operate solid waste services within the corporate
city limits pursuant to their contracts with their customers; and
WHEREAS, the City of Milton (“City”) seeks to provide standards of operation, regulation, and
oversight in the providing of solid waste services within the corporate city limits; and
WHEREAS, it is in the interest of the City and its citizens to offer companies currently providing such
services a non-exclusive contract on such terms and conditions that will provide the City with the controls
and options necessary to provide for the public good.
NOW, THEREFORE, COUNCIL OF THE CITY OF MILTON HEREBY ORDAINS:
Section 1. Definitions.
1.0 For the purpose of this ordinance, whenever inconsistent with the context, words used in
the present tense include the future tense, words in the plural include the singular, words
in the singular include the plural, and the use of any gender shall be applicable to all
genders whenever the sense requires. The words "shall" and "will" are mandatory and the
word "may" is permissive. Words not defined in this Section 1 or otherwise in this
ordinance shall be given their common and ordinary meaning.
The following words, terms, phrases and their derivations shall, in this ordinance, have
the meaning given in this section.
1.1 “City” means the City of Milton, Georgia, an incorporated municipal government in
Fulton County, State of Georgia. Boundaries defining the City limits may be changed via
ordinances approved by the City Council, for which any new boundary created shall be
subject to this contract.
1.2 “Company” means any organization, firm, person, entity, corporation or other business
that contracts with customers to provide for the collection and disposal of solid waste
material as defined in this ordinance, and including but not limited to
construction/demolition debris, dead animals, garbage, waste, storm debris, yard
trimmings, and recyclable material.
1.3 “Solid Waste” means the collection of residential and commercial non-recyclable waste,
residential and commercial recyclable waste, and residential yard trimmings/waste.
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1.4 “Approved Container or Approved Bag” or “Container” or “Bag” means those containers
used in the collection of solid waste, as defined in this ordinance, which have been
approved by the Company for use by both residential and commercial customers.
1.5 “Construction/Demolition Debris” shall have the meaning set forth by the Georgia
Department of Natural Resources, Environmental Protection Division (Georgia EPD
Chapter 391-3-4.01(14)).
1.6 “Dead Animals” shall mean animals or portions thereof equal to or greater than ten (10)
pounds in weight that have died from any cause, except those slaughtered or killed for
human use.
1.7 “Effective Date” means any contract executed between the City and any Company on or
after December 1, 2009.
1.8 “Term” shall mean a period of one year from the effective date.
1.9 “Environmental Laws” means all applicable laws, directives, rules, ordinances, codes,
guidelines, regulations, governmental, administrative or judicial orders or decrees or
other legal requirements of any kind, including, without limitation, common law, whether
currently in existence or hereafter promulgated, enacted, adopted or amended, relating to
safety, preservation or protection of human health and the environment (including
ambient air, surface water, groundwater, land, or subsurface strata) and/or relating to the
handling, treatment, transportation or disposal of waste, substances or materials,
including, without limitation, any matters related to releases and threatened releases of
materials and substances.
1.11 “Area” shall mean the area within the boundaries of the incorporated areas of the City of
Milton, as they exist as of the Effective Date in addition to future boundary changes as
outlined in section 1.1.
1.12 “Garbage” shall have the meaning set forth at Georgia Department of Natural Resources,
Environmental Protection Division (“Georgia EPD Chapter 391-3-4-.01(21)).
1.13 “Hazardous Materials” means any pollutant, contaminant, hazardous or toxic substance,
constituent or material, including, without limitation, petroleum products and their
derivatives, or other substances, regulated under or pursuant to any Environmental Laws.
The term Hazardous Materials also includes any pollutant, contaminant, hazardous or
toxic substance, constituent or material, including, without limitation, petroleum products
and their derivatives, or other substance that is, after the date first written above, deemed
hazardous be any judicial or governmental entity, body or agency having jurisdiction to
make that determination.
1.14 “Hazardous Waste” means any waste regulated under or pursuant to any Environmental
Laws, including, but not limited to, any solid waste which has been defined as a
hazardous waste in regulations promulgated by the Board of Natural Resources, Chapter
291-3-11. The term Hazardous Waste also includes Hazardous Materials and any waste
that is, after the Effective Date of this Agreement, deemed hazardous by any judicial or
governmental entity, board, body or agency having jurisdiction to make that
determination. The term “Hazardous Waste” will be construed to have the broader, more
Page 3 of 14
encompassing definition where a conflict exists in the definitions employed by two or
more governmental entities having concurrent or overlapping jurisdiction over Hazardous
Waste.
1.15 “Residential Unit” shall mean any structure, whether single family, multi-family, or
otherwise whose primary purpose is for living.
1.16 “Commercial Unit” shall mean any structure, whether free standing or designed to serve
multiple tenants, whose primary purpose is for conducting business.
1.17 “Construction Site” shall mean any parcel of land or real property having land
disturbance, clearing & grading, demolition, improvements & betterments, renovation,
remodeling and/or new construction work performed thereon or about the real property or
premises whether or not a land disturbance and/or building permit is required.
1.18 “Recycling” shall have the meaning set forth at Georgia Department of Natural
Resources, Environmental Protection Division (“Georgia EPD”) Chapter 391-3-4-
.01(57).
1.19 “Waste” means all putrescible and non putrescible solid, semi-solid, and liquid wastes,
including residential or commercial garbage, trash, refuse, paper, rubbish, ashes, manure,
vegetable or animal solid and semi-solid wastes, and other discarded solid and semi-solid
wastes.
1.20 “Yard Trimmings” shall have the meaning set forth at Georgia Department of Natural
Resources, Environmental Protection Division (“Georgia EPD”) Chapter 391-3-4-
.01(77).
1.21 “Customer” shall mean any firm, person, entity, corporation or organization that contracts
with a Company for the collection and disposal of solid waste material as defined in this
ordinance, and including but not limited to construction/demolition debris, dead animals,
garbage, waste, storm debris, yard trimmings, and recyclable material.
1.22 "Gross Receipts" shall mean the total amount collected by the Company from any and all
Customers for services rendered under authority of this Ordinance as a result of charges
for service. Gross receipts shall not include the Infrastructure Maintenance Fee identified
in this ordinance.
Section 2. Grant of Non-Exclusive Contract.
The City shall hereby grant to Companies a non-exclusive contract pursuant to the terms set forth herein
to use the public streets, alleys, roads and thoroughfares within the City for the purpose of operating and
engaging in the business of collecting and disposing of Waste; including, but not limited to, contracting
with Customers and providing service pursuant to contract therefore, placing and servicing containers,
operating trucks, vehicles and trailers, and such other operations and activity as are customary and/or
incidental to such business and service.
Page 4 of 14
Section 3. Term.
The term of any agreement shall be for a period of one (1) year beginning on the effective date of the
Contract execution and terminating on the first anniversary of said date. The Company shall begin
performance under this contract immediately after the effective date of the Contract execution.
Section 4. Scope and Nature of Operation.
4.1 Residential and Commercial Refuse and Waste. The Company may collect and deliver for
disposal all Residential and Commercial Refuse and Waste accumulated within the
corporate limits of the City by the Company's Customers and the words "refuse",
"garbage", "trash" and "waste" when used in this Ordinance are used for convenience and,
unless the context shows otherwise, refer to yard trimmings, recycling, storm debris,
garbage, and construction/demolition debris. The Company will furnish the personnel and
equipment to collect refuse, provide the services described herein, and as contracted for
with its Customers, in an efficient and businesslike manner.
4.2 Service Provided-Company shall provide container, bin and other collection service for the
collection of Residential and Commercial Refuse and Waste according to the individual
Customer agreements and applicable City regulations and shall make provision for the
special collection of such refuse and waste upon request. The Company shall cause or
require its equipment, containers and bins to be kept and maintained in a manner to not
cause or create a threat to the public health and shall keep the same in a good state of
repair.
4.3 Collection Operation- (a) Save and except as provided in this Section, collection shall not
start before 7:30 AM or continue after 7:30 PM at any location. Company may request
variances to this collection period provided that collections: (i) are made in a manner that
does not cause or result in loud noise; and (ii) that are made at a location which will not
cause the disturbance of persons occupying the premise or neighboring property must first
be confirmed prior to the request. All requests for variances of times must be submitted to
the City Manager, or his designee, and include documentation on the hardship created by
the collection operation period. Should such a collection operation variance be granted and
the city receive two complaints about the collection operation in any six month time
period, the City shall verify and substantiate the factual basis for any complaints. Should
the complaints be substantiated, the collection operation variance will be revoked. The
frequency of collection shall be determined by each individual customer agreement.
4.4 Holidays- The Company shall observe such holidays as it, in its sole discretion, determines
appropriate. Notification must be given by the Company to it’s Customers of the holidays
and resulting collection cycles.
4.5 All Companies must maintain a local customer service telephone number while conducting
business within the City. The telephone number must be publicly listed in a phone book
and available through directory assistance. Each Company providing trash receptacles,
whether commercial or residential, must mark each receptacle with the Company’s name
and telephone number in letters not less than four (4) inches in height. Each Company
must provide a mechanism to accept, investigate, and respond to customer complaints.
Companies are strongly encouraged to use multi-media devices including interactive
websites, e-mail, fax, and automated telephone systems. Service calls received by the City
as a result of non-Company performance will result in the consideration of revocation of a
non-exclusive contract or the City’s choice to not renew an existing agreement.
Page 5 of 14
4.6 Any invoice, bill, statement, or other device intended to request remittance by the customer
to the Company of funds for payment of service shall include at a minimum, the
Company’s telephone number and payment methods available to customers.
4.7 All Companies providing residential service or service to residential multi-family units
must provide a recycling program to all customers. This program is intended to promote
recycling programs throughout the City by reducing the amount of waste landfilled.
Commodities may be commingled by the consumer and collected commingled by the
hauler. Recycled commodities which must be offered in all programs are as follows:
brown, clear, and green glass; steel and tin cans; aluminum cans, foil, pie pans, plastic
items (#1, #2, and #3); cardboard, cereal boxes and any non-waxed paper containers; brown
paper grocery bags; newspapers; magazines; telephone books; junk mail; office papers; and
school papers. Customers shall be charged for the recycling program by the Company
regardless of utilization of the service. Haulers are to include this service with their
residential rate structure; however, the charge for recycling shall be shown separate from
other services provided.
4.8 All Companies providing commercial service must offer and promote a recycling program
to all customers. This program is intended to promote recycling programs throughout the
City by reducing the amount of waste landfilled.
4.9 All Companies providing residential service must offer the collection of yard trimmings to
all customers. This program is intended to assist in the collection and disposal of grass
clippings; leaves; pine cones and needles; twigs, limbs, and trunks of trees meeting size
limitations set by Company; bushes, brush, and all other general debris generated from the
maintenance of residential yards and lawns.
5.0 It shall be the Company’s obligation and responsibility to educate all Customers on
industry trends and best practices relating to solid waste collection, removal, and disposal.
Such education programs must consist of the following elements: recycling; holiday
schedules; new customer information; and any service related items. All Companies have
the obligation to inform Customers of any non-collected trash or items placed for collection
by the Customer but not covered under the agreement between the Customer and the
Company. Further, it shall be the Company’s obligation and responsibility to educate
Customers on days of collection for each specific service provided. All education and
communication between the Company and Customers should promote the placement of
residential collectibles at the curb the night before pick-up. Receptacles, containers, or
bagged materials shall not be left at the curb for longer than a twenty-four (24) hour period.
Section 5. Vehicles to be Covered and Identified.
All vehicles used by Company for the collection and transportation of refuse shall be covered at all times
while loaded and in transit to prevent the blowing or scattering of refuse onto the public streets or
properties adjacent thereto, and such vehicles shall be clearly marked with the Company's name and
telephone number in letters not less than four (4) inches in height.
5.1 Company must provide a comprehensive and proactive driver safety education program
which encourages safety on City streets. Such program must be demonstrated and
conveyed to the City. Company must comply with all other regulatory agencies, both local,
state, or otherwise with respect to commercial vehicle operation within the City. Service
calls received by the City as a result of non-Company performance will result in the
Page 6 of 14
consideration of revoking a non-exclusive contract or the City’s choice to not renew an
existing agreement.
5.2 Company must manage collection services delivered within the City to minimize the
number of vehicles on City roads. Coordination between haulers and service providers is
strongly encouraged to manage service vehicles on residential streets and neighborhoods.
5.3 Should Company utilize “Scout” trucks to facilite collection in residential areas where it is
not feasible to use standard collection vehicles, such vehicles must be covered at all times
while loaded and in transit should they exceed 30 miles per hour or be driven more then
300 yards on a public street.
Section 6. Regulation of Containers.
The Company may rent, lease, provide or define specifications for containers to any customer within the
corporate limits of the City for refuse storage and collection purposes subject to the following
requirements:
6.1 All containers shall be constructed and maintained according to industr y practice;
6.2 All containers shall be equipped with stable covers to prevent blowing or scattering of
refuse while being transported for disposal of their contents;
6.3 All containers, save and except those be ing used for the purpose of collecting and
storing rubble, building and scrap construction materials, shall be equipped with
covers suitable to prevent blowing or scattering refuse and access to the container
by animals while the container is at the site designated by Customer;
6.4 All containers shall be periodically cleaned, maintained, serviced and kept in a
reasonably good state of repair, to prevent the unreasonable accumulation of refuse
residues, to avoid excessive odor and harborage for rodents and flies resulting from
excessive residues remaining after collection of containers; and
6.5 All containers shall be clearly marked with the Company ’s name and telephone number
in letters not less than four (4) inches in height.
6.6 All containers shall not be on public rights of way and shall be located so as to not
interfere, block, obstruct or impede the normal use of any sidewalk, street, alley
driveway or fire lane, or to block, obstruct or impede sight distance at street, road or
alley intersecti ons.
6.7 All containers, bins, or other collection instruments must be kept free from graffiti, rust,
broken and non-operational parts and pieces, and litter in and around the area.
6.8 It shall be the responsibility of each Company to educate their Cust omers on the
regulations of containers and maintain industry standards, policies, and procedures,
which promote an asethically pleasing environment in and around all refuse and waste
containers and receptacles.
Section 7. Disposal of Refuse.
The Company will deliver all Waste collected by it from it’s customers within the City, except for
materials which the Company may select for recovery and recycling, to a disposal facility that is
permitted by the EPD to accept such refuse and waste. Rules and regulations governing hours of
Page 7 of 14
operation and disposal practices at the disposal facility will be observed and followed by the Company
while engaged in the disposal of refuse pursuant to this Ordinance. Any items collected as part of a
recycling program must be delivered to a facility where recovery and reuse occurs.
Should any company choose to offload or dispose of materials collected by one vehicle into another for
transport to the final disposal facility, Company shall make every available effort to perform such
refuse transfer on property owned by the Company or privately owned property where the Company
has an agreement with the property owner to perform such activity. In the event any transfer occurs on
public land, including streets, alleys, rights -of-ways, roads, thoroughfares, avenues, parkways,
expressways, or other areas designed and designated for public travel, Company shall make every effort
available to clean the area after completion of the transfer to insure the area is maintained at the same
or better level than if the area was not used for this activity. In the event the City receives complaints
regarding this practice, Company shall be required to cease from this activity at the location of the
complaint.
Section 8. Contract and Rental Fees.
8.1 Contract Fee- The streets, rights-of-way, and public easements to be used by the Company
in the operation of its business within the boundaries of the City as such boundaries now
exist and exist from time to time during the term of this contract, are valua ble public
properties acquired and maintained by the City at great expense to its taxpayers, and the
City will incur costs to regulate and administer this Ordinance. In consideration of such
benefits, costs and expenses, the Company shall through the term of its Contract collect an
“Infrastructure Maintenance Fee” equal to 5% of the Company’s gross receipts to
Customers within the City (exclusive of Sales Tax). The term “Infrastructure Maintenance
Fee” shall be used on all bills, invoices, or statements se nt by any Company to a Customer
under this Ordinance.
8.1.1 Fees Paid- The Infrastructure Mainteanance Fee shall be payable quarterly to the
City and delivered to the City in conjunction with a statement indicating the
derivation and calculation of such payment. Each such quarterly payment shall be
due on the 15th day of the second month following the end of the quarterly period
for which said payment is due. The quarterly payments shall be due on February
15, May 15, August 15, and November 15 of each year during the term hereof, with
the February 15 payment being based upon the Company's gross receipts during the
calendar quarter ending the prior December 31 and being payment for the rights
and privileges granted hereunder for said calendar quarter, the M ay 15 payment
being based upon the Company's gross receipts during the calendar quarter ending
the prior March 31 and being payment for the rights and privileges granted
hereunder for said calendar quarter, the August 15 payment being based upon the
Company's gross receipts during the calendar quarter ending the prior June 30 and
being payment for the rights and privileges granted hereunder for said calendar
quarter, and the November 15 payment being based upon the Company's gross
receipts during the calendar quarter ending the prior September 30 and being
payment for the rights and privileges granted hereunder for said calendar quarter.
During the implementation of this ordinance, all bills generated by Companies after
December 1, 2006 shall include the Infrastrusture Maintenance Fee. The City shall
provide material relating to the education and marketing efforts of the
Infrastructure Maintenance Fee as well as provide education and training to
Company employees to ensure a consistent message is conveyed to constitutents of
the City of Milton. For purposes of verifying the amount of such fee, the books of
Page 8 of 14
the Company shall at all reasonable times be subject to inspection by the duly
authorized representatives of the City.
8.1.2 No Other Rental Fees - The Contract fee shall be in lieu of any and all other City -
imposed rentals or compensation or contract, privilege, instrument, occupation,
excise or revenue taxes or fees and all other exactions or charges (except ad
valorem property taxes, special assessment s for local improvements, city sales
tax, and such other charges for utility services imposed uniformly upon persons,
firms or corporations then engaged in business within the City) or permits upon
or relating to the business, revenue, installations and systems, fixtures, and any
other facilities of the Company and all other property of the Company and its
activities, or any part thereof, in the City which relate to the operations of the
Company pursuant to this Ordinance; provided, that this shall not be c onstrued to
prevent the Company from being required to pay any and all applicable fees and
charges in effect from time to time for dumping at a landfill or transfer station.
8.1.3 Credit for Fees Paid - Should the City not have the legal power to agree th at the
payment of the foregoing sums of money shall be in lieu of contracts, fees, street
of alley rentals or charges, easement or ordinance fees or charges aforesaid, then
City agrees that it will apply so much of said sums of money paid as may be
necessary to Company's obligations, if any, to pay any such contract, ordinance
charges, other charges, fees, rentals, easement, taxes or charges.
8.1.4 Reporting – Any Company providing service pursuant to this Ordinance or a
resulting Contract shall from time to time provide the City with the necessary
statistics regarding waste collected and disposed which shall allow the City to
comply with State reporting requirements. Such information shall be in the
manner and format requested by the City and provide adeq uate details for the
City to maintain compliance with local, state, federal, and all other guidelines
relating to solid waste collection, removal, and disposal.
8.1.5 Dedicated Revenue – The Infrastrusture Maintenance Fee collected by the City
under this ordinance shall be dedicated to the following: (i) maintenance of the
City’s streets, corridors, alleys, thoroughfares, and transportation routes; (ii)
administration of contract compliance between Customers and Companies where
service is received as provided in this Ordinance; and (iii) collection of litter and
trash within the City.
Section 9. Compliance with Law.
The Company shall conduct under this Ordinance in compliance with the material provisions of all
applicable local, state and federal laws, rul es and regulations, and with the general specifications
contained in this Ordinance.
Section 10. Insurance Provided by Company.
10.1 Minimum Coverage Requirements - The Company shall maintain throughout the term
of its Contract, property damage coverage, ge neral liability insurance, and automobile
liability insurance for any automobile owned or operated by Company, with an
insurance company authorized and licensed to do business in the State of Georgia and
acceptable to the City, insuring against claims for liability and damages for the benefit
of the City. The insurance shall include the City as an additional insured. General
liability coverage insurance under this section shall be a minimum of One Million and
No/100 Dollars ($1,000,000) per occurrence with a Two Million and No/100 Dollars
Page 9 of 14
($2,000,000) aggregate. Automobile liability insurance under this section shall, at a
minimum, have limits of One Million and No/100 Dollars ($1,000,000) for each
occurrence. Additionally, umbrella coverage of One Million and No/100 Dollars
($1,000,000) on both automobile liability insurance and general liability insurance is
required.
10.2 Employer's Liability- If the Company is required by Georgia Statute, t he Company
shall maintain throughout the term of the Contract r esulting from this Ordinance the
requisite statutory workers' compensation insurance, and a minimum of One Hundred
Thousand and No/100 Dollars ($100,000) employer's liability insurance. Company
shall be required to show compliance to this section by submitting documentation of
such coverage from an approved carrier licenses in the State of Georgia , or
documentation explaining the exemption from employer’s liability insurance should
they not meet the state requirements to carry such coverage.
10.3 Certificate of Insurance- The insurance policy, or policies, obtained by the Company in
compliance with this section shall be approved by the City Manager or his designee in
the City Manager’s or his designee’s reasonable discretion, and the certificate of
insurance for the insurance policy shall be filed and maintained with the City during the
term of the Contract resulting from this Ordinance with a copy of the endorsement
required under Section 10.4 to be attached or made a part of such certificate.
10.4 Endorsements- All insurance policies maintained pursuant to this Ordinance shall
contain the following conditions by endorsement:
10.4.1 Additional Insured- The City shall be an additional insured and the term
"owner" and "City" shall include all authorities, Boa rds, Bureaus,
Commissions, Divisions, Departments and offices of the City and the
individual members, officers, employees and agents thereof in their official
capacities and/or while acting on behalf of the City.
10.4.2 Other Insurance Clause - The policy clause "Other Insurance" shall not apply to
the City when the City is an insured on the policy;
10.4.3 No Recourse- Companies issuing the insurance policies shall not recourse
against the City for payment of any premium or assessment.
10.5 Increase Requirements-The City may chose to amend this Ordinance to make
reasonable adjustments to the insurance coverage and their limits when deemed
necessary and prudent based upon changes in statutory law, court decisions, or the
claims history of the industry.
Section 11. Indemnification and Hold Harmless.
The Company agrees to indemnify, defend and save harmless the City, its agents, officers and
employees, against and from any and all claims by or on behalf of any person, firm, corporation or
other entity arising from any negligent act or omission or willful misconduct of the Company, or any
of its agents, contractors, servants, employees or contractors, and from and against all costs, counsel
fees, expenses and liabilities incurred in or about any such claim or pro ceeding brought thereon.
Promptly after receipt from any third party by City of a written notice of any demand, claim or
circumstance that, immediately or with the lapse of time, would give rise to a claim or the
commencement (or threatened commencement) of any action, proceeding or investigation (an “Asserted
Page 10 of 14
Claim”) that may result in losses for which indemnification may be sought hereunder, the City shall
give written notice thereof (the “Claims Notice”) to the Company provided, however, that a failure to
give such notice shall not prejudice the City’s right to indemnification hereunder except to the extent
that the Company is actually and materially prejudiced thereby. The Claims Notice shall describe the
Asserted Claim in reasonable detail, and shall indicate the amount (estimated, if necessary) of the losses
that have been or may be suffered by the City when such information is available. The Company may
elect to compromise or defend, at its own expense and by its own counsel, any Asserted Claim. If t he
Company elects to compromise or defend such Asserted Claim, it shall, within twenty (20) business
days following its receipt of the Claims Notice (or sooner, if the nature of the Asserted Claim so
required) notify the City of its intent to do so, and the City shall cooperate, at the expense of the
Company, in the compromise of, or defense against, such Asserted Claim. If the Company elects not to
compromise or defend the Asserted Claim, fails to notify the City of its election as herein provided or
contests its obligation to provide indemnification under this Agreement, the City may pay, compromise
or defend such Asserted Claim with all reasonable costs and expenses borne by the Company.
Notwithstanding the foregoing, neither the Company nor the City may settle or compromise any claim
without the consent of the other party; provided, however, that such consent to settlement or
compromise shall not be unreasonably withheld. In any event, the City and the Company may
participate at their own expense, in the defense of such Asserted Claim. If the Company chooses to
defend any Asserted Claim, the City shall make available to the Company any books, records or other
documents within its control that are necessary or appropriate for such defense.
Section 12. Forfeiture and Terminating of Contract.
12.1 Material Breach- In addition to all other rights and powers retained by the City under this
Ordinance or otherwise, the City reserves the right to declare any resulting Contract from
this Ordinance forfeited and t o terminate the Contract and all rights and privileges of the
Company hereunder in the event of a material breach of the terms and conditions hereof.
A material breach by Company shall include, but shall not be limited to, the following:
12.1.1 Fees- Failure to pay the fees set out in Section 8;
12.1.2 Telephone Listings- Failure to keep and maintain a local telephone listing and
office or answering service that is available by phone without long distance
charge during regular business hours for service t o the public, and which
telephone or office shall, at minimum, provide and maintain the following
services:
(a) Coordinate and provide information concerning deposits, payments and
accounts to Customers and prospective Customers;
(b) Respond to Customer and prospective Customer questions and issues about
billings, accounts, deposits and services;
(c) Coordination with the City with respect to private sector and public works
projects and issues related to or affecting the Company's operation; and
(d) Immediate response, upon request, to police, fire and other emergency
situations in which the public health and safety requires action with respect
to or assistance regarding Company's property.
12.1.3 Failure to Provide Service- Failure to materially provide the services provided
for in this Ordinance;
12.1.4 Misrepresentation- Material misrepresentation of fact in the application for or
negotiation of any contract resulting from this Ordinance; or
Page 11 of 14
12.1.5 Conviction- Conviction of any director, officer, employee, or agent of the
Company of the offense of bribery or fraud connected with or resulting from
the award of a contract from this Ordinance.
12.2 Operation Information - Material misrepresentation of fact knowingly made to the City
with respect to or regarding Company's operations, management, revenues, services or
reports required pursuant to this Ordinance .
12.3 Economic Hardship- Company shall not be excused by mere economic hardship nor by
misfeasance or malfeasance of its directors, offi cers or employees.
12.4 Forfeiture and Proceedings- Any unwarranted and intentional neglect, failure or refusal
of the Company to comply with any material provision of this Ordinance or resulting
Contract within thirty (30) days after written notice from C ity setting forth the specific
provision and noncompliance, said notice to be mailed to Company at its principal place
of business by certified mail, return receipt requested, shall be deemed a breach of this
Ordinance, and the City Council, upon notice to Company and hearing, may, for good
cause declare a Contract forfeited and exclude Company from further use of the streets of
the City under this Ordinance, and the Company shall thereupon surrender all rights in
and under this Ordinance and Contract.
12.4.1 Proceedings- In order for the City to declare a forfeiture pursuant to Sections
12.1, 12.2, 12.3, or 12.4, the City shall make a written demand that the
Company comply with any such provision, rule, order, or determination under
or pursuant to this Ordinance. If such violation by the Company continues for a
period of thirty (30) days following such written demand without written proof
that the corrective action has been taken or is being actively and expeditiously
pursued, the Council may take under con sideration the issue of termination of
the resulting Contract from this Ordinance. The City shall cause to be served
upon Company, at least twenty (20) days prior to the date of such a Council
meeting, a written notice of intent to request such termination and the time and
place of the meeting. Notice shall be given of the meeting and issue which the
Council is to consider.
12.4.2 Hearing - The Council shall hear and consider the issue, hear any person
interested therein, and shall determine whether or n ot any violation by the
Company has occurred.
12.4.3 Forfeiture- If the Council shall determine that the violation by the Company
was the fault of Company and within its control, the Council may declare the
contract forfeited and terminated, or the Counci l may grant to Company a
period of time for compliance.
Section 13. Transfer, Sale or Conveyance by Company.
The Company shall not transfer, assign, sell or convey any rights granted under any resulting Contract
from this Ordinance without the prior approval of the City Council; provided that this section shall not
apply to vehicles, replacements, maintenance, upgrades or modifications of equipment, machinery,
containers and buildings by Company for the purpose of maintaining and continuing its operation wi thin
the City; and provided further that Company may, in its sole discretion and upon written notice to the
City, transfer, assign, sell or convey their rights under this Ordinance to a wholly owned subsidiary of the
Company or to an affiliated entity that is under common control with Company (i.e. has a common parent
entity).
Page 12 of 14
Section 14. Foreclosure.
Upon the foreclosure or other judicial sale of all or a substantial part of the assets and property of the
Company used for and dedicated to providing service pursuant to this Ordinance, the Company shall
notify the City of such fact, and such notification shall by treated as a notification that a change in control
of the Company has taken place and the provisions of this Ordinance governing the consent of the
Council to such change in control of the Company shall apply. Upon the foreclosure or judicial sale, or
the leasing of all or a substantial part of the property and assets of the Company dedicated to and used for
the purposes of providing service pursuant to this Ordinance, without the prior approval of the Council,
the Council may, upon hearing and notice, terminate any Contract resulting from this Ordinance.
Section 15. Receivership and Bankruptcy.
15.1 Cancellation Option - The Council shall have the right to cancel any Contract resulting
from this Ordinance one hundred twenty (120) days after the appointment of a receiver
or trustee to take over and conduct the business of the Company, whether in receivership,
reorganization, bankruptcy, other action or preceding, whether voluntary or involuntary,
unless such receivership or trusteeship shall have been vacated prior to the expiration of
said one hundred twenty (120) days, unless:
15.1.1 Trustee Compliance- Within one hundred twenty (120) days after his election
or appointment, such receiver trustee shall have fully complied with all the
provisions of this Ordinance and remedied all defaults thereunder; or
15.1.2 Trustee Agreement - Such receiver or trustee, within one hundred twenty (120)
days, shall have executed an agreement, duly approved by the court having
jurisdiction, whereby the receiver or trustee assumes and agrees to be bound by
each and every provision of this Ordinance granted to the Company.
Section 16. Retention of City Police Powers.
The City retains and reserves all of its police powers and the rights, privileges, and immunities that it now
has under the law to regulate, patrol and police the streets and public ways within the City, and the
granting of any Contract as a result of this Ordinance shall in no way interfere with the improvements to,
or maintenance of, any street, alley or public way, and the rights of the City to use said streets, alleys and
public ways.
Section 17. Amendments of City Ordinances and Regulations.
The City reserves the right and power, pursuant to its police power, after due notice to Company, to
modify, amend, alter, change or eliminate any rules, regulations, fees, charges and rates of the City, and to
impose such additional conditions, that are not inconsistent with the rights granted by this Ordinance,
upon the Company and all persons, firms or entities of the same class as the Company, as may be
reasonably necessary in the discretion of the City Council to preserve and protect the public, health, safety
and welfare and/or insure adequate service to the public.
Section 18. Taxes.
The Company shall promptly pay all lawful ad valorem taxes, levies and assessments, if any, that are
imposed upon the Company. Absent an administrative or judicial challenge, or appeal, the failure to pay
any such tax, levy or assessment shall be a breach of this Ordinance.
Page 13 of 14
Section 19. Public Necessity.
The Council hereby finds and declares that the public welfare, convenience and necessity require the
service which is to be furnished by the Company.
Section 20. Solvability.
If any section, paragraph, subdivision, clause, part or provision hereof shall be adjudged invalid or
unconstitutional the same shall not affect the validity hereof as a whole or any part or provision other than
the part or parts held invalid or unconstitutional.
Section 21. Captions and Headings.
The use of captions or headings for the various sections of this Ordinance are for convenience of parties
only and do not reflect the intent of the parties. The rule of interpretation to solve ambiguities in a
contract against the party drafting such contract shall not apply to this Ordinance.
Section 22. No Suspension of Laws.
All provisions of the ordinances of the City as now existing or as may be amended from time to time, and
all provisions of the statues of the State of Georgia applicable to general law cities shall be a part of any
resulting contract from this Ordinance as fully as if the same had been expressly stated herein, and said
the City retains and may exercise all of the governmental and police powers and all other rights and
powers not directly inconsistent with the terms, conditions and provisions of this Ordinance.
Section 23. Peaceful Employment.
From and after the effective date of this ordinance, the City and the Company shall be and are hereby
authorized and entitled to act in reliance upon the terms, conditions and provisions of this Ordinance and
any resulting Contract and, subject thereto, the Company shall collect rates for service, operate and
conduct its business and work within the City, and enjoy the benefits and privileges of this Ordinance
during the term hereof.
Section 24. Open Meetings.
It is hereby officially found and determined that the meeting at which this ordinance was passed was open
to the public, and public notice of the time, place, and purpose of said meeting was given, as required by
the Open Meetings Act, Georgia Code.
Section 25. Endorsements and Records.
The City Clerk is directed to make endorsements as appropriate over his/her official hand and the seal of
the City on the form provided at the conclusion of this Ordinance, for the public record and convenience
of the citizens, of the date upon which this Ordinance is finally passed and adopted.
Section 26. Acceptance by Company.
Within thirty (30) days after the passage of this Ordinance, or within thirty (30) days of establishing a
business within the corporate City limits, all Companies operating a Residential or Commercial Refuse
Waste service shall file with the City its acceptance of the terms and provisions of this Ordinance, and
request for Contract. The acceptance and request for Contract shall be in writing on the Company's
letterhead and provide as follows:
Page 14 of 14
City of Milton
Attention: City Manager
13000 Deerfield Parkway,
Suite 107A/B
Milton, GA 30004
_______________________________________(the "Company"), acting by and through an officer who
is acting within its official capacity and authority, hereby accepts the City of Milton Solid Waste
Ordinance to operate a refuse and solid waste collection and disposal system within the City as said
Ordinance is set forth and provided herewith. The Company agrees to be bound and governed by each
term, provision and condition of the Ordinance, to accept and to give the benefit s provided by the
Ordinance, and to perform each service and duty set forth and provided for in the Ordinance in a
businesslike and reasonable manner and in compliance with the Ordinance.
Company: ____________________________________
By: _________________________________________
Printed Name: _________________________________
Title: ________________________________________
THIS ORDINANCE PASSED AND APPROVED on the 15TH day of November, 2010.
Approved:
__________________________________________
Joe Lockwood, Mayor
Attest:
_____________________________________
Sudie AM Gordon, City Clerk
(Seal)
Approved as to Form and Content:
_____________________________________
Ken Jarrard, City Attorney
Prepared by the Community Development Department for the
Planning Commission Meeting on October 26, 2010
*Based on the Revised Site Plan and Amended Letter of Intent Received by the Community Development
Department on October 13, 2010
10/20/2010
RZ10-05/U10-01/VC10-03 Page 1 of 23
R/A Z00-45 R/P Z99-11
PETITION NUMBERS
RZ10-05/U10-01/VC10-03
ADDRESS Deerfield Parkway
West Side for approximately 1,048 feet
DISTRICT, LAND LOT 2/2, 1114, 1047
OVERLAY DISTRICT State Route 9
EXISTING ZONING C-1 (Community Business) Z00-45, U00-25
O-I (Office & Institutional) Z99-11, U99-08
PROPOSED ZONING C-1 (Community Business) and Use Permit for a
Special School (Section 64-1831)
ACRES 12.87
EXISTING USE Undeveloped
PROPOSED USE Assisted Living Facility for adults with autism
Transitions Vocational School for adults with autism
OWNER Crescent Resources, LLC
ADDRESS 3500 Lenox Road, Suite 840
Atlanta, GA 30326
PETITIONER Alpharetta Land Partners, Les Brown
ADDRESS 12025 North Hickory Trace
Alpharetta, GA 30004
REPRESENTATIVE Nathan V. Hendricks III
ADDRESS 6085 Lake Forrest Drive, Suite 200
Atlanta, GA 30328
Prepared by the Community Development Department for the
Planning Commission Meeting on October 26, 2010
*Based on the Revised Site Plan and Amended Letter of Intent Received by the Community Development
Department on October 13, 2010
10/20/2010
RZ10-05/U10-01/VC10-03 Page 2 of 23
R/A Z00-45 R/P Z99-11
COMMUNITY DEVELOPMENT DEPARTMENT RECOMMENDATION
APPROVAL CONDITIONAL – RZ10-05
APPROVAL CONDITIONAL – U10-01
DENIAL – VC10-03, Parts 1,2 & 3
To rezone from C-1 (Community Business) and O-I (Office-Institutional) to C-1 (Community
Business) with a Use Permit to construct a Special School for a transitions vocational school
for adults at least eighteen years in age with autism and an assisted living facility for
autistic adults with 72 studios. The applicant is also requesting a 3-part concurrent variance :
1) Allow the exterior wall materials of all non-residential buildings and townhouse, duplex
and multifamily buildings to consist of a minimum of 65 percent in lieu of 75 percent (per
vertical wall plane) of the following : brick or natural stone (Section 64-1095(p)) for the
assisted living facility*;
2) Allow accent building materials for all non-residential buildings and also townhouse,
duplex and multifamily units to be limited to a maximum of 35 percent in lieu of 25
percent brick, tile, non-reflective glass, natural stone and weathered, polished or fluted
face, with fluted, split-face, or broken face finish, Portland cement plaster and lath
systems, architectural (either precast or tilt-up) concrete (fluted or with exposed finish) or
Hardi-Plank (Section 64-1095(q)) for the assisted living facility*;
3) Allow the following exterior siding colors as produced by Cabot Solid stains to be
permitted: Napa Vine, Newport Blue, Brickstone, Colonial Yellow, (Section 64-1095(t)) for
the assisted living facility. *
Prepared by the Community Development Department for the
Planning Commission Meeting on October 26, 2010
*Based on the Revised Site Plan and Amended Letter of Intent Received by the Community Development
Department on October 13, 2010
10/20/2010
RZ10-05/U10-01/VC10-03 Page 3 of 23
R/A Z00-45 R/P Z99-11
LOCATION MAP
Prepared by the Community Development Department for the
Planning Commission Meeting on October 26, 2010
*Based on the Revised Site Plan and Amended Letter of Intent Received by the Community Development
Department on October 13, 2010
10/20/2010
RZ10-05/U10-01/VC10-03 Page 4 of 23
R/A Z00-45 R/P Z99-11
CURRENT ZONING MAP
Prepared by the Community Development Department for the
Planning Commission Meeting on October 26, 2010
*Based on the Revised Site Plan and Amended Letter of Intent Received by the Community Development
Department on October 13, 2010
10/20/2010
RZ10-05/U10-01/VC10-03 Page 5 of 23
R/A Z00-45 R/P Z99-11
REVISED SITE PLAN – OCTOBER 13, 2010
Prepared by the Community Development Department for the
Planning Commission Meeting on October 26, 2010
*Based on the Revised Site Plan and Amended Letter of Intent Received by the Community Development
Department on October 13, 2010
10/20/2010
RZ10-05/U10-01/VC10-03 Page 6 of 23
R/A Z00-45 R/P Z99-11
Subject Site
Looking north on Deerfield Pkwy
Prepared by the Community Development Department for the
Planning Commission Meeting on October 26, 2010
*Based on the Revised Site Plan and Amended Letter of Intent Received by the Community Development
Department on October 13, 2010
10/20/2010
RZ10-05/U10-01/VC10-03 Page 7 of 23
R/A Z00-45 R/P Z99-11
Subject Site
Looking From Deerfield Parkway
Prepared by the Community Development Department for the
Planning Commission Meeting on October 26, 2010
*Based on the Revised Site Plan and Amended Letter of Intent Received by the Community Development
Department on October 13, 2010
10/20/2010
RZ10-05/U10-01/VC10-03 Page 8 of 23
R/A Z00-45 R/P Z99-11
SUBJECT SITE:
A 12.87 acre site currently zoned C-1 (Community Business) pursuant to Z00-45
approved for retail, service commercial, and/or office at a maximum density of
15,610.22 square feet per acre zoned or a total of 165,000 square feet and O-I
(Office-Institutional) pursuant to Z99-11 approved for retail, service commercial,
and or office, and accessory uses at a maximum density of 19,191 square feet
per acre or a total of 223,000 square feet, whichever is less. In addition, both
zoning parcels were approved for a height limited to no more than 6 stories
pursuant to U00-25 and U99-08. The site is currently undeveloped that is
wooded and contains an unnamed creek which flows along the northeastern
property line, eventually draining into Lake Deerfield. There are two small areas
of wetlands, one on the southwest property line and the east property line which
are not being disturbed and the site plan provides the appropriate state and
city buffers.
The property is part of the planned development of Deerfield, and is subject to
covenants of the development. The property is also subject to the State Route 9
Overlay District regulations.
Overview of the Applicant’s Request
Based on the applicant’s letter of intent received by the Community
Development Department on September 7, 2010 and subsequent amendment
to the letter of intent received on October 13, 2010, the information below
provides an overview of the applicant’s request for the subject site:
The applicant is requesting the proposed rezoning from C-1 (Community
Business) and O-I (Office-Institutional) to C-1 (Community Business) and a Use
Permit for a Special School in order to develop a residential assisted living facility
for adults with autism with a total of 72 studios (Staff will reference “beds” within
the Recommended Conditions to be consistent with the provisions of the zoning
ordinance). Each studio will be equipped with a bed, desk area and private
bathroom and contain approximately 340 square feet. There will be six “studios”
within each “neighborhood”. Within the neighborhood unit there will be a
common area living room, serving kitchen, great room, dining area, laundry
facility and an area for staff. The overall building will have a main reception
lobby and an additional three towers containing the neighborhoods with a
common reception area for each.
Prepared by the Community Development Department for the
Planning Commission Meeting on October 26, 2010
*Based on the Revised Site Plan and Amended Letter of Intent Received by the Community Development
Department on October 13, 2010
10/20/2010
RZ10-05/U10-01/VC10-03 Page 9 of 23
R/A Z00-45 R/P Z99-11
Secondly, the applicant will develop a 23,000 square foot, two story transitions
vocational school for autistic adults (at least eighteen years old). It will contain
computer labs, classrooms for various instructional classes, indoor pool, men’s
and women’s locker rooms with showers, gymnasium, lunch room, staff lounge
and a gift shop. There will be a glass greenhouse on the south side of the
building. The school will be available to both the residents of the assisted living
facility and day students with autism.
SITE PLAN ANALYSIS
Based on the applicant’s revised site plan submitted to the Community
Development Department on October 13, 2010, Staff offers the following
considerations:
BUILDING SETBACKS
The site plan indicates compliance with the following zoning district minimum
building setbacks pursuant Section 64-776:
• Front Yard (adjacent to Deerfield Parkway) 40 feet
• Sides and Rear [dictated by required landscape strips per the State Route
9 Overlay District Section 64-1090(b)] 10 feet
PARKING REQUIREMENTS
The following chart illustrates the parking required by Section 64-1410 of the City
of Milton Zoning Ordinance for the proposed uses:
Assisted Living Facility
72 beds at 1 space per 4 beds = 18 spaces
39 employees at 1 space per 3 employees = 13 spaces
Total spaces required - 31 spaces
Vocational School
23,000 square feet at 5 spaces per 1,000 square feet = 115 spaces
Required Parking Spaces - 146 spaces
Provided Parking Spaces – 154 spaces (8 of which are handicapped spaces)
Staff notes that Section 64-238 requires the site to provide a minimum 10-foot
wide landscape island at the end of each parking bay, and a 10-foot wide
Prepared by the Community Development Department for the
Planning Commission Meeting on October 26, 2010
*Based on the Revised Site Plan and Amended Letter of Intent Received by the Community Development
Department on October 13, 2010
10/20/2010
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R/A Z00-45 R/P Z99-11
landscape island every sixth parking space. It appears that the applicant has
complied with this requirement on the subject site.
STATE ROUTE 9 OVERLAY DISTRICT REQUIREMENTS
Landscape Strips
Section 64-1090 of the State Route 9 Overlay District requires a twenty (20) foot-
wide landscape strip along Deerfield Parkway. Section 64-1090 (c) further states
that for every thirty (30) linear feet of landscape strip, a minimum of one 3”
caliper hardwood shade tree is required to be planted in the center of the
landscape strip or as approved by the Director. Although the site plan does not
indicate the 20 foot landscape strip along Deerfield Parkway, there appears to
be adequate area and existing trees to meet this requirement.
Section 64-1090 (b) requires a minimum 10-foot wide landscape strip along any
interior property line adjacent to a non-residential zoning or use. Although the
applicant has not indicated compliance on all property lines, it appears that this
requirement can be met.
Building Height
The proposed assisted living facility will be three stories in height with the rear
elevation to be four stories in height*. This is in compliance with the maximum
height of 4 stories for development along Deerfield Parkway (Section 64-1095
(n)). The proposed vocational school will be two stories in height which also is in
compliance with Section 64-1095(n).
These proposed building heights will be reflected in the Recommended
Conditions.
Service Areas
Service areas for both facilities are located away from Deerfield Parkway and
tucked behind each building so that deliveries, trash collection, etc. will not be
seen from public areas or Deerfield Parkway.
Internal Circulation
The site plan indicates various pedestrian paths within the site connecting the
assisted living facility with the vocational school and other public areas. In
addition, there are paths that provide connections with the pedestrian sidewalk
Prepared by the Community Development Department for the
Planning Commission Meeting on October 26, 2010
*Based on the Revised Site Plan and Amended Letter of Intent Received by the Community Development
Department on October 13, 2010
10/20/2010
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R/A Z00-45 R/P Z99-11
on Deerfield Parkway where a MARTA Bus Stop is available to residents and
visitors.
It appears that the proposed development meets the required standards for the
State Route 9 Overlay District except for the concurrent variance discussed
below.
The applicant is requesting the following 3-part concurrent variance, VC10-03,
to the State Route 9 Overlay District:
1) Allow the exterior wall materials of all non-residential buildings and
townhouse, duplex and multifamily buildings to consist of a minimum of 65
percent in lieu of 75 percent (per vertical wall plane) of the following: brick or
natural stone (Section 64-1095(p)) for the assisted living facility*,
2) Allow accent building materials for all non-residential buildings and also
townhouse, duplex and multifamily units to be limited to a maximum of 35
percent in lieu of 25 percent brick, tile, non-reflective glass, natural stone and
weathered, polished or fluted face, with fluted, split-face, or broken face
finish, Portland cement plaster and lath systems, architectural (either precast
or tilt-up) concrete (fluted or with exposed finish) or Hardi-Plank (Section 64-
1095(q)) for the assisted living facility*,
3) Allow the following exterior siding colors as produced by Cabot Solid stains to
be permitted: Napa Vine, Newport Blue, Brickstone, Colonial Yellow, (Section
64-1095(t)) for the assisted living facility. *
Although, the requested 3-part concurrent variance may produce a more
aesthetically pleasing development that is consistent with the applicant’s vision
for the project, it does not demonstrate compliance with all of the variance
considerations as required by Section 64-1883. Therefore, Staff recommends that
VC10-03, Parts 1-3 be DENIED.
Standards of Review
[Section 64-2104(c)] Planning Staff shall, with respect to each zoning
application, investigate and make a recommendation with respect to factors A.
through G., below, as well as any other factors it may find relevant.
1. Whether or not the proposal will permit a use that is suitable in view of the
use and development of adjacent and nearby Property?
The original rezoning for this site was approved C-1 (Community Business)
for a 6 story, 165,000 square foot office building at an overall density of
15,610.22 square feet per acre pursuant to Z00-045 and U00-025. In
Prepared by the Community Development Department for the
Planning Commission Meeting on October 26, 2010
*Based on the Revised Site Plan and Amended Letter of Intent Received by the Community Development
Department on October 13, 2010
10/20/2010
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R/A Z00-45 R/P Z99-11
addition, a small southern portion of the subject site is currently zoned O-I
(Office-Institutional) and U99-08 for a 6 story, 223,000 square foot office
building at 19,998 square feet per acre pursuant to Z99-11.
**Staff notes that pursuant to ZM10-03, a site plan modification was
approved for Z93-11 to develop a 40,500 square foot data center on 8.5
acres of the site. The rremainder of the property is within the legal
description of the subject site.
Existing uses and zoning of nearby property (See Map following table)
Location Parcel / Zoning
Petition
Zoning /
Development Name
Approved Density
(sq ft per acre)/
Max Square Feet
of Bldg/Height
North 1
Z74-48
U98-39
(to exceed height)
C-1 (Community Business)
Portion of Deerfield
Professional Offices and
Bright Horizons Day Care
None Stated
U98-39 for 4 stories
Northeast 2
Z74-47
U96-72
(to exceed height)
O-I (Office-Institutional)
Portion of Deerfield
Professional Offices
None Stated
U96-72 for 6 stories
East 3
Z03-08
TR (Townhouse Residential)
Lake Deerfield
116 units / 7.39 units
per acre
Southeast 4
Z97-098
O&I (Office & Institutional)
Verizon Wireless office
buildings
11,500/437,000
South 5**
Z93-11
U99-08
(to exceed height)
O&I (Office & Institutional)
Undeveloped
19,191/223,000
U99-08 for 6 stories
6
Z73-001
C-1 (Community Business)
Wal-Mart / Frys Electronics
None Stated
Prepared by the Community Development Department for the
Planning Commission Meeting on October 26, 2010
*Based on the Revised Site Plan and Amended Letter of Intent Received by the Community Development
Department on October 13, 2010
10/20/2010
RZ10-05/U10-01/VC10-03 Page 13 of 23
R/A Z00-45 R/P Z99-11
EXISTING USES MAP
Prepared by the Community Development Department for the
Planning Commission Meeting on October 26, 2010
*Based on the Revised Site Plan and Amended Letter of Intent Received by the Community Development
Department on October 13, 2010
10/20/2010
RZ10-05/U10-01/VC10-03 Page 14 of 23
R/A Z00-45 R/P Z99-11
2. Whether or not the proposal will adversely affect the existing use or
usability of adjacent or nearby property?
The proposed development will not adversely affect the existing uses
nearby or adjacent uses if developed with the recommended conditions.
3. Whether the property to be affected by the proposal has a reasonable
economic use as currently zoned?
The property does have a reasonable economic use as currently
zoned as it is zoned C-1 (Community Business).
4. Whether the proposal will result in a use which will or could cause an
excessive or burdensome use of existing streets, transportation facilities,
utilities or schools?
It is Staff’s opinion that the proposed use may cause an increased burden
on the streets and transportation facilities and utilities but significantly less
than if it was developed under the existing zoning conditions. The increase
should be mitigated with the Recommended Conditions.
5. Whether the proposal is in conformity with the policies and intent of the
land use plan?
The proposed C-1 (Community Business) zoning is consistent with the
policies and intent of the City of Milton Partial Plan Update. The subject
property is located along the west side of Deerfield Parkway, south of
Webb Road, which the Partial Plan Update discusses as being
appropriate for Retail and Service uses. It is the opinion of the Staff that
the proposed use and its proximity to other service, commercial and
office uses lends itself to the desired retail and service composition of the
area and complies with the policies of the Comprehensive Plan.
City of Milton Partial Plan Update Plan Map: Retail & Service
Proposed use/density: Assisted living facility for autistic adults with 72
studios (64,000 square feet) and a transitions vocational school for autistic
adults (23,000 square feet) for a total of 87,000 square feet at a density of
6,759.9 square feet per acre.
Prepared by the Community Development Department for the
Planning Commission Meeting on October 26, 2010
*Based on the Revised Site Plan and Amended Letter of Intent Received by the Community Development
Department on October 13, 2010
10/20/2010
RZ10-05/U10-01/VC10-03 Page 15 of 23
R/A Z00-45 R/P Z99-11
The Partial Plan Update Map suggests Retail and Service for the
surrounding properties along the Deerfield Parkway corridor south of
Webb Road, and north of Windward Parkway.
The Milton City Council adopted the Partial Plan Update in December
2009. The proposed development is consistent with the following Plan
Policies:
• We will support programs that retain, expand and create
businesses that provide a good fit for our community’s economy
in terms of job skills required and links to existing businesses.
• We will consider access to housing and impacts on
transportation when considering economic development
projects.
• We will encourage more compact development of land in
appropriate designated areas in order to preserve natural
resource areas and preserve contiguous green open spaces.
• We will encourage new development to locate in suitable
locations close to transportation and infrastructure resources in
order to protect environmentally sensitive areas and valuable
historic, archaeological or cultural resources from
encroachment.
• We will promote low impact site development that encourages
maintaining the natural topography and existing vegetation on
a site when feasible, and in some cases when required.
• We will promote the protection and maintenance of trees and
contiguous green open space in new development.
• We will direct development pressure away from agricultural
areas and encourage development to occur close to
transportation opportunities.
• We will accommodate our diverse population by encouraging a
compatible mixture of housing types, densities and costs within
the City.
Prepared by the Community Development Department for the
Planning Commission Meeting on October 26, 2010
*Based on the Revised Site Plan and Amended Letter of Intent Received by the Community Development
Department on October 13, 2010
10/20/2010
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R/A Z00-45 R/P Z99-11
• We will encourage development that is sensitive to the overall
setting of the community and will contribute to our community’s
character and sense of place.
• We will encourage development that provides appropriate
employment opportunities to serve our current and future
population.
• We will encourage mixed-use developments that are human-
scale and less auto-oriented where appropriate.
6. Whether there are other existing or changed conditions affecting the use
and development of the property which gives supporting grounds for
either approval or disapproval of the proposal?
There are existing zonings of community business on the subject site and to
the west and north; Office-Institutional further north, south, and east. In
addition assisted living facilities are permitted within the C-1 (Community
Business) district and a Special School is allowed with a Use Permit within
the C-1 (Community Business) district. Lastly, the adopted land use policies
support this request to develop the assisted living facility and vocational
school.
7. Whether the zoning proposal will permit a use which can be considered
environmentally adverse to the natural resources, environment and
citizens of the City of Milton?
Staff notes that the proposed rezoning will not have a negative effect on
the environment and natural resources based on the fact that the site
plan indicates compliance with the required stream buffer and non-
impervious setback. The site plan indicates that many of the specimen
trees will be preserved as well as open space will be provided along the
eastern property line and the area between the school and assisted living
facility.
In summary, the proposed C-1 (Community Business) zoning is consistent with the
policies of the Partial Plan Update, the existing C-1 district on the subject site,
and the surrounding C-1 and O&I districts. Therefore, Staff recommends that this
petition, RZ10-05 be APPROVED CONDITIONAL subject to the attached
Recommended Conditions.
Per Section 64-1831 of the Zoning Ordinance, special schools are required to
have a Use Permit for all zoning districts. The applicant is requesting a Use Permit
Prepared by the Community Development Department for the
Planning Commission Meeting on October 26, 2010
*Based on the Revised Site Plan and Amended Letter of Intent Received by the Community Development
Department on October 13, 2010
10/20/2010
RZ10-05/U10-01/VC10-03 Page 17 of 23
R/A Z00-45 R/P Z99-11
to allow a special school, specifically a transitions vocational school for adults
with autism at least eighteen years in age. The school is proposed to be a total
of 23,000 square feet and two stories in height.
In the interest of the public health, safety and welfare, the Mayor and City
Council may exercise limited discretion in evaluating the site proposed for a use
that requires a Use Permit. In exercising such discretion pertaining to the subject
use, the Mayor and City Council shall consider each of the following as outlined
in 64-1552 of the Zoning Ordinance; Use Permit Considerations. Staff has
reviewed said items pertaining to the subject use, and, offers the following
comments:
A. Whether the proposed use is consistent with the land use or economic
development plans adopted by the Mayor and City Council:
Provided the applicant complies with the Recommended Conditions and
the Use Permit requirements of Section 64-1831 of the Zoning Ordinance,
the proposed development is consistent with the intent and following
policies of the Partial Plan Update:
• We will support programs that retain, expand and create
businesses that provide a good fit for our community’s economy
in terms of job skills required and links to existing businesses.
• We will accommodate our diverse population by encouraging a
compatible mixture of housing types, densities and costs within
the City.
• We will encourage development that is sensitive to the overall
setting of the community and will contribute to our community’s
character and sense of place.
• We will encourage development that provides appropriate
employment opportunities to serve our current and future
population.
• We will encourage mixed-use developments that are human-
scale and less auto-oriented where appropriate.
B. Compatibility with land uses and zoning districts in the vicinity of the
property for which the use permit is proposed;
Based on the fact that use permits for special schools are permitted in all
zoning districts, the proposed vocational school is compatible with the
existing land uses and zoning districts surrounding the subject site and is
Prepared by the Community Development Department for the
Planning Commission Meeting on October 26, 2010
*Based on the Revised Site Plan and Amended Letter of Intent Received by the Community Development
Department on October 13, 2010
10/20/2010
RZ10-05/U10-01/VC10-03 Page 18 of 23
R/A Z00-45 R/P Z99-11
developed in accordance with Staff’s Recommended Conditions and the
provisions of the Zoning Ordinance, the proposed special school will be
compatible with other land uses on the subject site and the surrounding
area.
C. Whether the proposed use may violate local, state and/or federal statutes,
ordinances or regulations governing land development;
The proposed use does not violate any known local, state and/or federal
statutes, ordinances or regulations governing land development.
D. The effect of the proposed use on traffic flow, vehicular and pedestrian,
along adjoining streets;
The proposed use may increase the amount of vehicular traffic, but the
impact should be mitigated with the recommended conditions. Staff
notes that a proposed internal pedestrian network will encourage
pedestrian use between the proposed assisted living facility and the
proposed school. In addition there is an existing sidewalk along the
Deerfield Parkway frontage, which will facilitate pedestrian access. Also
of note, the subject property is on a current Marta bus line.
E. The location and number of off-street parking spaces;
Section 64-1410 requires the applicant to provide a minimum of 5 parking
spaces per every 1,000 square feet. Based on the proposed 23,000 square
foot school, the applicant is proposing 115 parking spaces which meet
the minimum required parking spaces. The spaces are located northeast
of the school building within the central portion of the site.
F. The amount and location of open space;
The site plan indicates that approximately one-quarter of the eastern
portion of the site is undisturbed with a springhead and perennial stream
protected by the required state and city buffers. There are also
approximately 12 mature size trees located in this preserved area. There
are other open spaces within the site along Deerfield Parkway and the
center of the site. It is Staff’s opinion that the amount and location of
open space enhances the design of the site.
Prepared by the Community Development Department for the
Planning Commission Meeting on October 26, 2010
*Based on the Revised Site Plan and Amended Letter of Intent Received by the Community Development
Department on October 13, 2010
10/20/2010
RZ10-05/U10-01/VC10-03 Page 19 of 23
R/A Z00-45 R/P Z99-11
G. Protective screening;
It appears that the site plan meets the required landscape strips for the
entire parcel. In addition, there is a perennial stream located along the
east property and a small springhead on the southwest property line near
Deerfield Parkway. The site plan indicates compliance with the required
state and city stream buffers and non-impervious setback. The proposed
development will retain the existing trees located in the stream buffer as
well as other trees within the development.
H. Hours and manner of operation;
The applicant has indicated that school will be used between 7:00 am.
and 6:00 pm. and occasional use during the evening and weekends for
special programming.
I. Outdoor lighting;
The applicant has indicated that the site lighting will comply with the State
Route 9 Overlay District requirements.
J. Ingress and egress to the property.
The applicant’s site plan proposes to utilize the existing full access curb cut
on Deerfield Parkway opposite to the Verizon Wireless offices.
Development Standards for Special School – Section 64-1831
Staff notes that the applicant’s site plan complies with all of the required
standards for a special school.
In summary, the proposed Use Permit is consistent with the policies of the Partial
Plan Update, the existing C-1 district on the subject site, the surrounding C-1 and
O&I districts and meets the development standards for the Use Permit. Therefore,
Staff recommends this petition, U10-01 be APPROVED CONDITIONAL subject to
the attached Recommended Conditions.
Prepared by the Community Development Department for the
Planning Commission Meeting on October 26, 2010
*Based on the Revised Site Plan and Amended Letter of Intent Received by the Community Development
Department on October 13, 2010
10/20/2010
RZ10-05/U10-01/VC10-03 Page 20 of 23
R/A Z00-45 R/P Z99-11
City Arborist Comments:
Site appears to have been selectively harvested within the past 15 years or so.
There are some nice mature hardwoods on the site but few of specimen size.
There is a nice diversity of trees on site and with strong natural re-vegetation
occurring on site with a mix of oaks, maples, sweet gums, tulip poplars, hickories,
sourwoods and dogwoods. Plan shows preserving some of the mature trees in
the interior of the project, however to do so may require protecting a larger
area than just the drip line. Grade changes, cut and fills, should be kept to a
minimum. Per this plan, three specimen trees will require recompense.
The applicant should work with the existing conditions of the site as much as
possible rather than modifying the site for mere simplicity. Existing topography
and vegetation should be given strong consideration.
A springhead is located near the southwestern property line. The 75 foot stream
buffer will not be impacted as well as another stream buffer located at the
northeastern property line.
Public Involvement
On September 29, 2010 the applicant was present at the Community Zoning
Information Meeting held at the Milton City Hall. No one attended this meeting.
Public Comments – None at this time.
City of Milton Design Review Board Meeting Courtesy Review – October 5, 2010
The following comments were made by the DRB for the rezoning/use permit:
No objections to the rezoning petition; good use for property.
Building footprint for the residential component does not match site
plan.
Should be able to meet 75% brick or stone requirement; Add
brick/stone to vertical elements, up to ridgeline.
Screen dumpsters.
Show design of greenhouses.
Trees shown as saved should be maintained with adjustments in
footprint
Prepared by the Community Development Department for the
Planning Commission Meeting on October 26, 2010
*Based on the Revised Site Plan and Amended Letter of Intent Received by the Community Development
Department on October 13, 2010
10/20/2010
RZ10-05/U10-01/VC10-03 Page 21 of 23
R/A Z00-45 R/P Z99-11
The following comments were made by the DRB for the design of the buildings:
Original design (with colors) more pleasant than beige building
option; Board approves of the use of darker colors, subject to final
submittal.
Appropriate for craftsman style.
Colors help with way finding; identification for the residents.
Concept covered in brick or stone or highway 9 colors would be
oppressive; Moorish.
Off-white shingles or stucco would create a sterile, more modern
look; Building would lose its connection to the residential vernacular.
Likes water table; lighter material helps break up mass; building
seems lighter.
Break up façade with more brick/stone; can get closer to the
required 75%. Run masonry up middle pop-up to eaves; review the
water table for balance.
Masonry balance should be more of a aesthetic consideration than
mathematical equation.
The white windows add detail to the building, make colors pop.
Staff should review allowed overlay colors.
Staff notes that prior to issuance of a Land Disturbance Permit and any Building
Permits, the City of Milton Design Review Board will be required to review the
plans.
Public Participation Plan and Report
The applicant has met the requirements of the Public Participation Plan. The
applicant submitted the first Plan Report on October 19, 2010 and an update will
be required 7 days prior to the Mayor and City Council meeting.
CONCLUSION
The proposed C-1 (Community Business) and Use Permit for a Special School is
consistent with the policies and intent of the City of Milton Partial Plan Update
and consistent with recent policy, therefore, Staff recommends that this request
to rezone to C-1 (Community Business), RZ10-03 and U10-01 be APPROVED
CONDITIONAL. Further, Staff recommends DENIAL of VC10-03, Parts 1, 2, and 3.
Prepared by the Community Development Department for the
Planning Commission Meeting on October 26, 2010
*Based on the Revised Site Plan and Amended Letter of Intent Received by the Community Development
Department on October 13, 2010
10/20/2010
RZ10-05/U10-01/VC10-03 Page 22 of 23
R/A Z00-45 R/P Z99-11
RECOMMENDED CONDITIONS
If this petition is approved by the Mayor and City Council, it should be
APPROVED C-1 (Community Business) CONDITIONAL and a Use Permit for a
Special School subject to the owner’s agreement to the following enumerated
conditions. Where these conditions conflict with the stipulations and offerings
contained in the Letter of Intent, these conditions shall supersede unless
specifically stipulated by the Mayor and City Council.
1) To the owner’s agreement to restrict the use of the subject property as
follows:
a) Assisted Living Facility with no more than 72 beds, at a maximum
density of 4,972.8 gross floor area per acre zoned or a total gross
floor area of 72,000 square feet, whichever is less.
b) Limit the height of the assisted living facility to no more than 50 feet
as measured from average grade, and four (4) stories.
c) Special School at a maximum density of 1,787.1 gross floor area per
acre zoned or a total floor area of 23,000 square feet, whichever is
less. (U10-01)
d) Limit the height of the special school to no more than 40 feet as
measured from average grade, and two (2) stories.
2) To the owner’s agreement to abide by the following:
a) To the revised site plan received by the Community Development
Department on October 13, 2010*. Said site plan is conceptual only
and must meet or exceed the requirements of the Zoning
Ordinance, all other applicable City ordinances and these
conditions prior to the approval of a Land Disturbance Permit. In
the event the Recommended Conditions of Zoning cause the
approved site plan to be substantially different, the applicant shall
be required to complete the concept review procedure prior to
application for a Land Disturbance Permit. Unless otherwise noted
herein, compliance with all conditions shall be in place prior to the
issuance of the first Certificate of Occupancy.
Prepared by the Community Development Department for the
Planning Commission Meeting on October 26, 2010
*Based on the Revised Site Plan and Amended Letter of Intent Received by the Community Development
Department on October 13, 2010
10/20/2010
RZ10-05/U10-01/VC10-03 Page 23 of 23
R/A Z00-45 R/P Z99-11
3) To the owner’s agreement to abide by the following requirements,
dedication and improvements:
a) Dedicate at no cost to the City of Milton prior to the approval of a
Certificate of Occupancy, sufficient land as necessary to provide the
following:
i. Provide at least 12 feet of right-of-way from the back of curb of all
abutting road improvements or 1 foot from the back of sidewalk,
whichever is greater, along the entire property frontage, as well as
allow the necessary construction easements while right-of-way is
being improved.
ii. Installation/modification of the following transportation
infrastructure to be installed in accordance with Chapter 48 Streets,
Sidewalks and Other Public Places of the City of Milton Code of
Ordinances :
a) SB Right Turn Lane on Deerfield Pkwy at site driveway
1. Any existing sidewalk or utilities in conflict with new turn
lane location shall be relocated
b) Any new required entrances shall meet the City of Milton Code of
Ordinances and AASHTO guidelines as approved by Milton Public
Works and shall conform to the following:
i. The Deerfield Pkwy driveway shall provide a minimum of 100 feet or
the 95% queue length, whichever is greater, of uninterrupted
access. This distance shall be measured from the edge of the thru
lane on Deerfield Pkwy to the edge of any interior drive aisle or
parking space.
4) To the owner’s agreement to abide by the following:
a) The stormwater management facilities shall utilize earthen embankments,
where possible. Walled structures are not encouraged. If walled structures
are proposed, they must meet the acceptable design standards of the
Department of Community Development.
i. Where side slopes for stormwater management facility are
steeper than 4:1 the facility shall have a six foot high, black
five-board equestrian style fence with two inch by four inch
welded wire constructed around it.
ORDINANCE NO._______
PETITION NO. RZ10-05/U10-01/
VC10-03
STATE OF GEORGIA
COUNTY OF FULTON
AN ORDINANCE TO REZONE FROM C-1 (COMMUNITY BUSINESS) AND O-I
(OFFICE-INSTITUTIONAL) TO C-1 (COMMUNITY BUSINESS) AND A USE PERMIT
FOR A SPECIAL SCHOOL PROPERTY LOCATED ON THE WEST SIDE OF
DEERFIELD PARKWAY WITH FRONTAGE OF 1,048 FEET
BE IT ORDAINED by the City Council for the City of Milton, Georgia while in regular session on
November 15, 2010 at 6:00 p.m. as follows:
SECTION 1. That the Zoning Ordinance of the City of Milton be amended, and the official
maps established in connection therewith be changed so that the following property located on the
west side of Deerfield Parkway with frontage of 1,048 feet, consisting of a total of approximately
12.87 acres as described in the attached legal description, be rezoned to C-1 (Community Business)
District and a Use Permit for a Special School with conditions, attached hereto and made a part
herein;
ALL THAT TRACT or parcel of land lying and being Land Lots 1114 and 1047 of the 2nd District
2nd Section, City of Milton, Fulton County, Georgia; and
SECTION 2. That the C-1 (Community Business) zoning listed in the attached conditions
of approval, be approved under the provisions Chapter 64, Article VI, Division 18 of the Zoning
Ordinance of the City of Milton and the Use Permit for a Special School be approved under the
provisions Section 64-1820 of the Zoning Ordinance of the City of Milton; and
SECTION 3. That the property shall be developed in compliance with the conditions of
approval as attached to this ordinance. Any conditions hereby approved (including any site plan) do
not authorize the violation of any district regulations; and
SECTION 4. That the official maps referred to, on file in the Office of the City Clerk, be
changed to conform with the terms of this ordinance; and
SECTION 5. That all ordinances or part of ordinances in conflict with the terms of this
ordinance are hereby repealed; and
SECTION 6. This Ordinance shall become effective upon adoption by the Mayor and City
Council and the signature of approval of the Mayor.
ORDAINED this 15th day of November, 2010.
Approved:
______________________
Joe Lockwood, Mayor
Attest:
________________________________
Sudie Gordon, City Clerk
(Seal)
CONDITIONS OF APPROVAL
RZ10-05/U10-01/VC10-03
The City of Milton Mayor and City Council approved the rezoning of property
located on Deerfield Parkway, West side with a frontage of 1,048 feet for C-1
(Community Business) CONDITIONAL, Use Permit for a Special School (Section 64-
1820) subject to the owner’s agreement to the following enumerated conditions.
Where these conditions conflict with the stipulations and offerings contained in the
Letter of Intent, these conditions shall supersede unless specifically stipulated by the
Mayor and City Council.
1) To the owner’s agreement to restrict the use of the subject property as
follows:
a) Assisted Living Facility with no more than 72 beds, at a maximum
density of 4,972.8 gross floor area per acre zoned or a total gross floor
area of 72,000 square feet, whichever is less.
b) Limit the height of the assisted living facility to no more than 50 feet
as measured from average grade, and four (4) stories.
c) Special School at a maximum density of 1,787.1 gross floor area per
acre zoned or a total floor area of 23,000 square feet, whichever is
less. (U10-01)
d) Limit the height of the special school to no more than 40 feet as
measured from average grade, and two (2) stories.
2) To the owner’s agreement to abide by the following:
a) To the revised site plan received by the Community Development
Department on October 13, 2010. Said site plan is conceptual only
and must meet or exceed the requirements of the Zoning Ordinance,
all other applicable City ordinances and these conditions prior to the
approval of a Land Disturbance Permit. In the event the
Recommended Conditions of Zoning cause the approved site plan to
be substantially different, the applicant shall be required to complete
the concept review procedure prior to application for a Land
Disturbance Permit. Unless otherwise noted herein, compliance with all
conditions shall be in place prior to the issuance of the first Certificate
of Occupancy.
3) To the owner’s agreement to abide by the following requirements, dedication
and improvements:
a) Dedicate at no cost to the City of Milton prior to the approval of a
Certificate of Occupancy, sufficient land as necessary to provide the
following:
i. Provide at least 12 feet of right-of-way from the back of curb of all
abutting road improvements or 1 foot from the back of sidewalk,
whichever is greater, along the entire property frontage, as well as
allow the necessary construction easements while right-of-way is being
improved.
ii. Installation/modification of the following transportation infrastructure to
be installed in accordance with Chapter 48 Streets, Sidewalks and
Other Public Places of the City of Milton Code of Ordinances :
a) SB Right Turn Lane on Deerfield Pkwy at site driveway
1. Any existing sidewalk or utilities in conflict with new turn
lane location shall be relocated
b) Any new required entrances shall meet the City of Milton Code of
Ordinances and AASHTO guidelines as approved by Milton Public Works
and shall conform to the following:
i. The Deerfield Pkwy driveway shall provide a minimum of 100 feet or the
95% queue length, whichever is greater, of uninterrupted access. This
distance shall be measured from the edge of the thru lane on
Deerfield Pkwy to the edge of any interior drive aisle or parking space.
4) To the owner’s agreement to abide by the following:
a) The stormwater management facilities shall utilize earthen embankments,
where possible. Walled structures are not encouraged. If walled struc tures
are proposed, they must meet the acceptable design standards of the
Department of Community Development.
i. Where side slopes for stormwater management facility are
steeper than 4:1 the facility shall have a six foot high, black five-
board equestrian style fence with two inch by four inch welded
wire constructed around it.
Revised Site Plan Submitted October 13, 2010
Prepared by the Community Development Department for the
City of Milton Planning Commission on October 26, 2010
10/21/2010 Page 1 of 25
U10-02/VC10-04
PETITION NUMBER(S):
U10-02
VC10-04
PROPERTY INFORMATION
ADDRESS 13120 Arnold Mill Road
DISTRICT, LAND LOT 2/2, 1018
OVERLAY DISTRICT Northwest Fulton Overlay
EXISTING ZONING AG-1
ACRES 1.7102
EXISTING USE Landscaping Business
PROPOSED USE Use Permit for Landscaping Business (Section 64-1820)
OWNER The Landscape Group, Inc.
Frank Schaffer
ADDRESS 13120 Arnold Mill Road
Milton, Georgia 30075
REPRESENTATIVE Rolader and Shippel
Donald Rolader
11660 Alpharetta Hwy
Roswell, GA 30076
Prepared by the Community Development Department for the
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U10-02/VC10-04
COMMUNITY DEVELOPMENT DEPARTMENT RECOMMENDATION
U10-02 – DENIAL
VC10-04, Parts 1-4 - DENIAL
INTENT
To request a Use Permit for a Landscaping Business (Sec 64-1820) and a 4-part concurrent
variance in the existing buildings consisting of an 800 square foot office and 6,600 square
foot warehouse for a total of 7,400 square feet at an overall density of 4,327 square feet per
acre:
1) To reduce a portion of the 50-foot buffer and 10-foot improvement setback to 0 feet
beginning at a point on the west property line at the northwestern property corner for a
total distance of 126 feet to a point on the west property line located 126 feet south of the
northwestern property corner (Sec 64-1141.3.a),
2) To reduce a portion of 50-foot buffer and 10-foot improvement setback to a 30-foot
undisturbed buffer with a 10-foot improvement setback beginning at a point located 40
feet south of the northeastern property corner for a total distance of 98 feet to a point on
the east property line located 138 feet south of the northeastern property corner.
(Sec 64-1141.3.a.),
3) To reduce the 50-foot building setback to a 44.09-foot setback for the warehouse along
the east property line (Sec 64-1820(b)3),
4) To reduce the 50-foot building setback to a 47.58-foot setback for the warehouse and a
28.25-foot setback for the steps to the office deck along the west property line (Sec 74-
1820(b)3).
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U10-02/VC10-04
LOCATION MAP
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ZONING MAP
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FUTURE LAND USE PLAN MAP
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REVISED SITE PLAN SUBMITTED OCTOBER 20, 2010 (3 sheets)
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Prepared by the Community Development Department for the
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Looking south along west property line
Looking from east to west property line behind office
Prepared by the Community Development Department for the
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Frontage looking east along Arnold Mill Road
Southside of Warehouse
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MAIN OFFICE BUILDING ON SUBJECT SITE
SUBJECT SITE
The subject site is a 1.7102 acre tract of agriculturally zoned land, located on the
southern side of Arnold Mill Road. The subject site is developed with an 800 sq.
ft. house which is used as an office and a two story 6,600 sq. ft. warehouse (3,300
sq. ft for each level). It is located within the Agricultural, Forestry and Mining
Land Use designation on the City of Milton Partial Plan Update.
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USE PERMIT CONSIDERATIONS
In the interest of the public health, safety and welfare, the Mayor and City
Council may exercise limited discretion in evaluating the site proposed for a use
that requires a Use Permit. In exercising such discretion pertaining to the subject
use, the Mayor and City Council shall consider each of the following as outlined
in Section 64-1552 of the Zoning Ordinance; Use Permit Considerations. Staff has
reviewed said items pertaining to the subject use, and, offers the following
comments:
A. Whether the proposed use is consistent with the land use or economic
development plans adopted by the Mayor and City Council:
The requested Use Permit is inconsistent with the intent and following
policies of the City of Milton Partial Plan Update:
We will direct development pressure away from agricultural
areas and encourage development to occur close to
transportation opportunities.
We will encourage development that is sensitive to the overall
setting of the community and will contribute to our community’s
character and sense of place.
We support appropriate residential and non-residential infill
development and redevelopment in ways that complement
surrounding areas.
Based on the applicant’s need for concurrent variances to reduce the
undisturbed buffer and setbacks required by the Use Permit from adjacent
AG-1 (Agricultural) to the west and a residential use in AG-1 (Agricultural)
to the east, it does not provide for appropriate transition of uses.
B. Compatibility with land uses and zoning districts in the vicinity of the
property for which the use permit is proposed;
The proposed Landscaping Business is not compatible with land uses in
the vicinity based on the need for reduction of undisturbed buffers and
required building setbacks for the Use Permit that would provide the
necessary protection of the adjacent properties. Staff notes that the
applicant made a request for Use Permit for a landscaping business on
the subject site that was denied by the City of Milton Mayor and City
Council on October 19, 2009. On December 17, 2007, the Milton City
Council denied a request for a landscaping business in AG-1 with
concurrent variances on Hopewell Road pursuant to U07-06/VC07-13. In
addition, the Fulton County Board of Commissioners denied a request for
a Landscape Business and concurrent variances in AG-1 on Birmingham
Hwy pursuant to 2004U-08/2004VC-077. Staff notes that on November 17,
Prepared by the Community Development Department for the
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2008, Milton City Council approved a use permit for a landscaping
business in AG-1 that did not require any variances at 13365 Arnold Mill
Road pursuant to U08-06.
Location Parcel /
Zoning
Petition
Zoning / Name Approved
Density/Min.
Heated Floor
Area
West 1 (AG-1) Agricultural
Undeveloped
1 u/a
Northwest 2 (AG-1) Agricultural
Single-family home
1 u/a
Northwest 3 (AG-1) Agricultural
Single-family home
1 u/a
North 4 (AG-1) Agricultural
Single-family home
1 u/a
Northeast 5 (AG-1 Agricultural
Undeveloped
1 u/a
Further East 6 (AG-1) Agricultural
Sweet Apple Animal Hospital
1 u/a
East 7 (AG-1) Agricultural
Single-family home
1 u/a
South 8 (AG-1) Agricultural
Heydon Hall Subdivision
City of Roswell
1 u/a
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C. Whether the proposed use may violate local, state and/or federal statutes,
ordinances or regulations governing land development;
Some disturbance has occurred in the 50-foot undisturbed buffer as well
as the 25-foot state buffer. Action has been taken concerning the
disturbance of the 25-foot state buffer and has been adjudicated in the
court. These areas will also need to be re-vegetated to buffer standards.
D. The effect of the proposed use on traffic flow, vehicular and pedestrian,
along adjoining streets;
The proposed use will not generate a significant increase in traffic, but if
this petition is approved, Staff recommends that only one entrance be
utilized at the western side of the property based on site distance
requirements along Arnold Mill Road.
E. The location and number of off-street parking spaces;
Section 64-1410 requires the applicant to provide a minimum of 3 parking
spaces per 1,000 square feet of office space and provide 1 parking space
per 2,000 square feet of warehouse space. The Use Permit standards
pursuant to Section 64-1820.b.2 requires the applicant to locate parking
and storage of work vehicles outside of the minimum 60-foot front yard
building setback. The applicant’s site plan indicates seven parking
spaces which meet the requirements of Article 64-1410 and are located
outside the 60-foot front yard building setback. In addition, the site plan
indicates the handicapped space on a concrete parking pad in front of
the warehouse. The applicant intends to provide a telephone for a
handicapped customer to call for assistance from the office.
F. The amount and location of open space;
The applicant’s site plan indicates that approximately one half of the
subject site is undeveloped. Staff notes that this open space is located
behind the stream which bisects the property approximately in the
middle. In addition there is an additional stream running north to south.
Although, the proposed development will provide adequate open space
on the south side of the property, the portion north of the stream does not
provide sufficient open space based on the applicant’s variance requests
to reduce the buffers. Staff notes that the existing warehouse’s location
within the 25-foot city stream buffer and 25-foot non-impervious setback is
grandfathered, but it does eliminate possible open space to provide a
more consistent development with adjacent properties.
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G. Protective screening;
The request for buffer variances does not provide sufficient screening for
adjacent properties along portions of the east and west property lines.
Staff notes that the applicant intends to remove the concrete along the
frontage near the east property line and replant to buffer standards for a
distance of 40 feet from the northeast corner of the property. The
application is requesting a reduction in the undisturbed buffer along the
west property line to zero feet for a distance of 126 feet to allow the
relocated entrance. It is Staff’s opinion that the proposed use is too
intense for this particular property based in part by the amount of
equipment described in section H and the apparent lack of screening.
H. Hours and manner of operation;
The applicant states that the hours of operation are from 7:30am to
6:00pm. The business is a full landscape, maintenance, and design
company. Equipment consists of mowers, leaf blowers, edgers, and
trimmers, which are stored in boxed trucks. This business has two box
trucks for lawn maintenance, two landscape trucks, two midsize pickup
trucks for sales and service, one bobcat, and one box trailer.
I. Streetscape lighting;
At the time of issuance of a City of Milton Business License, the site shall be
in compliance with Article 12H.3.4 of the Northwest Fulton Overlay District
regarding outdoor lighting. Staff notes that the applicant does not have
any plans for additional lighting on the property.
J. Ingress and egress to the property.
The applicant’s site plan indicates one curb cut on Arnold Mill Road. Staff
notes that there are two existing entrances to the property. The applicant
proposes to close one of these entrances due to the high volume of traffic
on Arnold Mill Road. If this petition is approved, Staff will require the
entrance on the east be closed to provide ingress and egress on the most
western portion of the property.
Based on the above Use Permit Considerations and City Council policy for the
subject site and that the new request is not significantly different from the
previous one, the proposed use is not in the interest of the public health, safety
and welfare. Therefore, Staff recommends the request for a Landscape Business,
U09-01 be DENIED
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SITE PLAN ANALYSIS
Based on the revised site plan submitted on October 19, 2010, Staff offers the
following considerations:
Northwest Fulton Overlay District
Building Setback
For non-residential structures, Section 64-1145.3.b. of the Northwest Overlay
District requires a maximum 30-feet building setback from the edge of the
required landscape strip and/or easements for all properties and lots located
adjacent to public rights-of-way and from 0 to 400 feet from an intersection. The
site plan indicates the office to be approximately 27 feet from the right-of-way.
There are no additional structures proposed on the site.
Section 64-416 (AG-1 District) of the Milton Zoning Ordinance requires a
minimum side yard of 25 feet, and a minimum rear yard of 50 feet. The site plan
appears to be in compliance with the remainder of the side and rear building
setbacks.
BUILDING HEIGHT
Section 64-1145.4 of the Northwest Fulton Overlay District requires a maximum
height limit of two stories with the maximum height 30 feet from average-finished
grade to the bottom of the roof eave. It appears that the applicant meets this
requirement for both the house and warehouse.
OTHER CONSIDERATIONS
The Fulton County Health Department requires working wells and septic
tanks/lines to be a minimum of 100 feet apart. The applicant’s plumber has
determined that the distance between the well and septic tank/lines are 106
feet. In addition, the plumber has stated that the lines are located west of the
tank away from the well. The Fulton County Health Department tested the
water quality with a satisfactory result (see report attached). In addition, the
official comments from the Health Department are attached at the end of the
report.
LANDSCAPE BUSINESS USE PERMIT STANDARDS
The applicant’s site plan appears to meet the use permit standards except for
Section 64-1820b.3. which requires all use areas/structures other than parking
and pedestrian walkways shall be located at least 50 feet from any adjoining
residential district or AG-1 (Agricultural) district. The related concurrent variances
are discussed below.
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LANDSCAPE STRIPS AND BUFFERS
Section 64-1141.a. states that all properties shall provide a minimum 10 foot-wide
landscape strip along all public streets. It appears that the applicant has met
this requirement. Staff notes that the low wall and sign adjacent to the Arnold
Mill Road is located in the right-of-way and therefore must be removed.
Furthermore, Section 64-1141.3.a. of the Northwest Overlay District requires a
fifty (50) foot-wide undisturbed buffer and a 10’ improvement setback which
shall be located adjacent to all AG-1 zoning districts and all property zoned,
used, or developed for residential uses. Staff notes that the applicant is
applying for two concurrent variances to delete the 50’ buffer and 10’
improvement setback on the east and west property lines for the following
requests:
VC10-04, Parts 1 and 2
Part 1 – Beginning at a point on the west property line at the northwestern
property corner; to reduce a portion of the 50-foot buffer and 10-foot
improvement setback to 0 feet beginning at a point on the west property line at
the northwestern property corner for a total distance of 126 feet to a point on
the west property line located 126 feet south of the northwestern property
corner (Section 64-1141.3.a)
Part 2 – Beginning at a point on the east property line located 40 feet south of
the northeastern property corner; to reduce a portion of the 50-foot buffer and
10-foot improvement setback be reduced to a 30-foot undisturbed buffer with a
10-foot improvement setback for a total distance of 98 feet to a point on the
east property line located 138 feet south of the northeastern property corner
(Section 64-1141.3.a).
It is Staff’s opinion that the proposed use on the subject site with the requested
reduction in buffers is too intensive for the property adjacent to agricultural and
residential uses as discussed within the Use Permit Considerations. In addition, it is
Staff’s opinion that the need for the buffer reductions are caused by the
applicant’s request to operate a landscaping business that does not comply
with the zoning ordinance as well as not complying with all of the variance
considerations contained in Section 64-1883. Therefore, Staff recommends
DENIAL of VC10-02, Parts 1 and 2.
VC10-04, Parts 3 and 4
Part 3 - To reduce the 50-foot building setback to a 44.09-foot setback for the
warehouse along the east property line (Sec 64-1820(b) 3).
Prepared by the Community Development Department for the
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Part 4 - To reduce the 50-foot building setback to a 47.58-foot setback for the
warehouse and a 28.25-foot setback for the steps to the office deck along the
west property line (Sec 74-1820(b) 3).
Although the two buildings that require a reduction in setbacks are existing
structures, by requesting a landscaping business, the buildings are not in
compliance with the Use Permit standards. It further demonstrates that the
proposed use is too intensive for the property and does not provide adequate
setbacks to adjacent AG-1 (Agricultural) properties. In addition, it is Staff’s
opinion that the need for the reductions are caused by the applicant’s request
to operate a landscaping business that does not comply with the zoning
ordinance as well as not complying with all of the variance considerations
contained in Section 64-1883. Therefore, Staff recommends DENIAL of VC10-02,
Parts 3 and 4.
If the City Council approves the Use Permit, the Public Works Department
requires that the applicant relocate the property entrance to the western side
of the property due to sight distance issues, the attached conditions will provide
for the reduced buffer to allow a safe egress.
If the City Council approves the Use Permit, the applicant must replant the
eastern side of the property to buffer standards as prescribed by the City of
Milton Zoning Ordinance. This will be reflected in the attached conditions.
PARKING REQUIREMENTS
The following chart illustrates the parking required by Section 64-1410 of the City
of Milton Zoning Ordinance for the proposed use:
Proposed Use Minimum Requirement Spaces Provided
General Office
(800 sq. ft.)
Warehouse (6,600 sq. ft.)
Total
3 spaces per 1,000 sq. ft. of
building area (3 spaces)
1 space per 2,000 sq. ft. of
building area (4 spaces)
7 spaces required
7 spaces provided
Staff notes that the applicant is providing seven (7) parking spaces, which meets
the required seven (7) parking spaces required per of the City of Milton Zoning
Ordinance. One of the seven parking spaces is required to be a handicapped
space. The handicapped space is located on a concrete parking pad in front
of the warehouse. The applicant intends to provide a telephone for a
handicapped customer to call for assistance from the office. This is an
acceptable location per the Building Official.
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STORMWATER ENGINEERING/INSPECTOR
The subject site is an approximate 1.7102 acre site located on Arnold Mill Road
which is State Route 140. The lot is bisected by a perennial stream which limits
access to the southern half of the lot. An additional perennial stream runs from
north to south on the southern half of the site. The southern half is also heavily
wooded with several specimen trees. There are three buildings on the property,
a single family residence and one large storage building and one small storage
building. All were constructed prior to Milton becoming a city. The storage
building is located within the 50 foot stream buffer and the impervious set back.
It would be grandfathered by the existing ordinance. Since 2007, some grading
and the addition of impervious surface have been added to the site. Some of
the disturbance has occurred in the 50 foot undisturbed buffer as well as the 25
foot state buffer. Action has been taken concerning the disturbance of the 25
foot state buffer and has been adjudicated in the court. These areas will also
need to be re-vegetated to buffer standards or obtain a variance.
Should the Use Permit be approved we have the following comments:
1. The applicant will be required to obtain a land disturbance permit prior
to the issuance of a business license.
2. The proposed plan must demonstrate compliance with the stormwater
ordinance. (Including recently installed impervious areas.)
3. The applicant must obtain approval from Fulton County Health
department as it affects the existing septic system.
4. The plan shall include retaining walls as may be needed to clear the 50
foot buffer.
5. The plan shall be approved as required by DOT.
CITY ARBORIST
Much of the vegetation within the western buffer was removed prior to
submission as well as vegetation within the 75’ non-impervious setback. The
eastern portion of property was previously void of trees and is being used for
parking and storage. Area of disturbance around the specimen pine tree
appears to have been done previously. Buffers east and west of the warehouse
shall be planted to buffer standards and must be approved by the Arborist.
Buffer plantings shall remain in perpetuity and with good vigor and shall be
replaced if it dies. A bond will be required for the specimen pine tree along the
east property line toward Arnold Mill Road to assure its vitality for two years.
A re-vegetation plan has been submitted to the City Arborist for review. The
following are his comments regarding this plan:
Stream buffer plan does meet or exceed re-vegetation requirements.
Plantings may vary to small degree as there may be existing vegetation to
remain where credit will be given.
Prepared by the Community Development Department for the
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Eastern buffer plan meets requirements however would like to discuss tree
placement plan further with the landscape architect. Specimen pine tree
shall be saved or recompensed if damaged or removed.
Landscape strip provides appropriate screening and street trees are
appropriate selection as they are underneath power lines.
Site well exceeds tree density with undisturbed portion on south side of the
stream.
PUBLIC INVOLVEMENT
On September 28, 2010 the applicant was present at the Community Zoning
Information Meeting held at the Milton City Hall. There were no other attendees
present.
City of Milton Design Review Board Meeting – October 5, 2010
No objections to use permit; hardship is pretty well demonstrated for
variances.
Public Participation Plan and Report
The applicant has met the requirements of the Public Participation Plan. The
applicant submitted the public participation report on October 19, 2010 and an
update 7 business days prior to the Mayor and City Council meeting.
CONCLUSION
Staff finds that the proposed use and requested concurrent variances are not
compatible with other uses in the area and is not in the public’s best interest,
safety and welfare. In addition, City Council’s prior policy for the subject site is
not to allow a landscape business and the new request is not significantly
different than the previous request. Therefore, Staff recommends DENIAL of U10-
02 and VC10-04, PARTS 1-4.
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RECOMMENDED CONDITIONS
If this petition is approved by the Mayor and City Council, it should be approved
USE PERMIT for a Landscape Business (Section 64-1820) CONDITIONAL subject to
the owner’s agreement to the following enumerated conditions. Where these
conditions conflict with the stipulations and offerings contained in the Letter of
Intent, these conditions shall supersede unless specifically stipulated by the
Mayor and City Council.
1) To the owner’s agreement to restrict the use of the subject property as
follows:
a) Landscape business within the existing house and warehouse at a
density of 4,326.9 gross floor area per acre zoned or a total gross
floor area of 7,400 square feet, whichever is less.
2) To the owner’s agreement to abide by the following:
b) To the revised site plan received by the Milton Community
Development Department on October 19, 2010. Said site plan is
conceptual only and must meet or exceed the requirements of the
Zoning Ordinance and these conditions prior to the issuance of a
City of Milton Business License. Unless otherwise noted herein,
compliance with all conditions shall be in place prior to the
issuance of the first Certificate of Occupancy.
3) To the owner’s agreement to the following site development
considerations:
a) Remove portions of concrete pad on eastern side of property as
depicted on the revised site plan submitted on October 19, 2010
and replant to buffer standards as prescribed by the City of Milton
Zoning Ordinance. Specimen pine tree in this area shall require a
bond.
b) Delete the 50-foot undisturbed buffer and 10-foot improvement
setback for a total of 127 feet to a point on the west property line
located 127 feet south of the northwestern property corner to the
revised site plan received October 19, 2010 for the purpose of
allowing the existing driveway only (VC10-04, Part 1).
c) Provide a 30-foot undisturbed buffer and 10-foot improvement
setback along the east property line beginning at a point located
40 feet south of the northeastern property corner for a distance of
98 feet to a point on the east property line located 138 feet south of
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the northeastern property corner to the revised site plan received
October 19, 2010. (VC10-04, Part 2)
d) Provide a 44.09-foot building setback for the existing warehouse
along the east property line. (VC10-04, Part 3)
e) Provide a 47.58-foot building setback for the existing warehouse
along the west property line and a 28.25-foot building setback
along the west property line. (VC10-04, Part 4)
f) Prior to the issuance of a City of Milton Business License, the
applicant must obtain a land disturbance permit and complete the
requirements of said land disturbance permit.
g) The site and buildings must meet applicable accessibility codes.
h) Provide a landscape plan including the buffer mitigation plan for
the areas of the stream buffer that are disturbed.
4) To the owner’s agreement to abide by the following requirements,
dedication and improvements:
a) Provide any turn lanes as may be required by GDOT.
b) Provide only one driveway location at the northwest end of the
property based upon best sight distance as approved by the
Director of Public Works and GDOT.
i. Entrance shall meet the City of Milton Code of Ordinances
and AASHTO guidelines, or be reconstructed to meet such
criteria, at the approval of the Transportation Engineer for
Milton and GDOT.
c) Close additional driveway and remove concrete within the Right of
Way located at the southeast end of the property.
Prepared by the Community Development Department for the
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Comments from the Fulton County Department of Health and Wellness:
Since this development utilizes an onsite sewage management system, this
department must determine the capacity of the system based on documentation
submitted for review and existing conditions. The owner must obtain approval
from this department prior to issuance of a building permit, before building
construction or renovation, and/or prior to occupancy.
Since this development utilizes an individual onsite water supply, the owner must
contact this department for onsite water supply testing.
Since this development utilizes an individual onsite water supply, the owner must
obtain approval from this department prior to issuance of a building permit, before
building construction or renovation, and/or prior to occupancy.
This facility must comply with the Georgia Smokefree Air Act of 2005 and the
Fulton County Code of Ordinances and Code of Resolutions, Chapter 34 – Health
and Sanitation, Article III – Clean Indoor Air.
Prepared by the Community Development Department for the
City of Milton Planning Commission on October 26, 2010
10/21/2010 Page 25 of 25 U10-02/VC10-04
ORDINANCE NO._______
PETITION NO. U10-02/VC10-04
STATE OF GEORGIA
COUNTY OF FULTON
AN ORDINANCE TO APPROVE A USE PERMIT FOR A LANDSCAPING BUSINESS
LOCATED AT 13120 ARNOLD MILL ROAD (SR 140)
TAX PARCEL ID 22 356010180180
BE IT ORDAINED by the City Council for the City of Milton, Georgia while in regular session on
November 15, 2010 at 6:00 p.m. as follows:
SECTION 1. That the Zoning Ordinance of the City of Milton be amended, and the official
maps established in connection therewith be changed so that the following property located at 13120
Arnold Mill Road, consisting of a total of approximately 1.7102 acres as described in the attached
legal description, for a Use Permit for a Landscaping Business with conditions, attached hereto and
made a part herein;
ALL THAT TRACT or parcel of land lying and being Land Lot 1018 of the 2nd District 2nd Section,
City of Milton, Fulton County, Georgia; and
SECTION 2. That the Use Permit for a Landscaping Business in the attached conditions of
approval, be approved under Section 64-1820 of the Zoning Ordinance of the City of Milton; and
SECTION 3. That the property shall be developed in compliance with the conditions of
approval as attached to this ordinance. Any conditions hereby approved (including any site plan) do
not authorize the violation of any district regulations; and
SECTION 4. That the official maps referred to, on file in the Office of the City Clerk, be
changed to conform with the terms of this ordinance; and
SECTION 5. That all ordinances or part of ordinances in conflict with the terms of this
ordinance are hereby repealed; and
SECTION 6. This Ordinance shall become effective upon adoption by the Mayor and City
Council and the signature of approval of the Mayor.
ORDAINED this 15th day of November, 2010.
Approved:
______________________
Joe Lockwood, Mayor
Attest:
________________________________
Sudie Gordon, City Clerk
(Seal)
CONDITIONS OF APPROVAL
U10-02/VC10-04
The Mayor and City Council approved this USE PERMIT for a Landscaping Business
(Section 64-1820) CONDITIONAL subject to the owner’s agreement to the following
enumerated conditions. Where these conditions conflict with the stipulations and
offerings contained in the Letter of Intent, these conditions shall supersede unless
specifically stipulated by the Mayor and City Council.
1) To the owner’s agreement to restrict the use of the subject property as
follows:
a) Landscape business within the existing house and warehouse at a
density of 4,326.9 gross floor area per acre zoned or a total gross floor
area of 7,400 square feet, whichever is less.
2) To the owner’s agreement to abide by the following:
b) To the revised site plan received by the Milton Community
Development Department on October 19, 2010. Said site plan is
conceptual only and must meet or exceed the requirements of the
Zoning Ordinance and these conditions prior to the issuance of a City
of Milton Business License. Unless otherwise noted herein, compliance
with all conditions shall be in place prior to the issuance of the first
Certificate of Occupancy.
3) To the owner’s agreement to the following site development
considerations:
a) Remove portions of concrete pad on eastern side of property as
depicted on the revised site plan submitted on October 19, 2010 and
replant to buffer standards as prescribed by the City of Milton Zoning
Ordinance. Specimen pine tree in this area shall require a bond.
b) Delete the 50-foot undisturbed buffer and 10-foot improvement
setback for a total of 127 feet to a point on the west property line
located 127 feet south of the northwestern property corner to the
revised site plan received October 19, 2010 for the purpose of allowing
the existing driveway only (VC10-04, Part 1).
c) Provide a 30-foot undisturbed buffer and 10-foot improvement setback
along the east property line beginning at a point located 40 feet south
of the northeastern property corner for a distance of 98 feet to a point
on the east property line located 138 feet south of the northeastern
property corner to the revised site plan received October 19, 2010.
(VC10-04, Part 2)
d) Provide a 44.09-foot building setback for the existing warehouse along
the east property line. (VC10-04, Part 3)
e) Provide a 47.58-foot building setback for the existing warehouse along
the west property line and a 28.25-foot building setback along the west
property line. (VC10-04, Part 4)
f) Prior to the issuance of a City of Milton Business License, the applicant
must obtain a land disturbance permit and complete the requirements
of said land disturbance permit.
g) The site and buildings must meet applicable accessibility codes.
h) Provide a landscape plan including the buffer mitigation plan for the
areas of the stream buffer that are disturbed.
4) To the owner’s agreement to abide by the following requirements, dedication
and improvements:
a) Provide any turn lanes as may be required by GDOT.
b) Provide only one driveway location at the northwest end of the
property based upon best sight distance as approved by the Director
of Public Works and GDOT.
i. Entrance shall meet the City of Milton Code of Ordinances and
AASHTO guidelines, or be reconstructed to meet such criteria, at
the approval of the Transportation Engineer for Milton and
GDOT.
c) Close additional driveway and remove concrete within the Right of
Way located at the southeast end of the property.
REVISED SITE PLAN SUBMITTED OCTOBER 19, 2010
STATE OF GEORGIA ORDINANCE NUMBER ____________
COUNTY OF FULTON
AN ORDINANCE TO AMEND CHAPTER 58, UTILITIES,
OF THE CITY OF MILTON CODE OF ORDINANCES TO
ESTABLISH COMMERCIAL CAR WASH WATER
RECYCLYING REQUIREMENTS; TO REPEAL
CONFLICTING PROVISIONS; TO PROVIDE FOR
SEVERABILITY; TO PROVIDE FOR AN EFFECTIVE
DATE; AND FOR OTHER PURPOSES.
THE COUNCIL OF THE CITY OF MILTON HEREBY ORDAINS while in regular session
on the _____ day of _____________, 2010 as follows:
SECTION 1. That this Ordinance relating to amending Chapter 58, Utilities, of the City
of Milton Code of Ordinances is hereby adopted and approved as follows:
Section 58-175. - Definitions
The following words and phrases, whenever used in this ordinance,
have the meaning defined in this section:
In-bay automatic car wash means a commercial car wash where the
driver pulls into the bay and parks the car. The vehicle remains stationary
while a machine moves back and forth over the vehicle to clean it, instead of
the vehicle moving through the tunnel.
Conveyor car wash means a commercial car wash where the car
moves on a conveyor belt during the wash. The driver of the vehicle can
remain in the vehicle or wait outside of the vehicle.
Recycled water system means a water system that captures and reuses
water, regardless of the source, previously used in wash or rinse cycles.
Self-service car wash means a commercial car wash where the
customers wash their cars themselves with spray wands and brushes.
Section 58-176. - Purpose and Intent
The purpose of this ordinance is to reduce water consumption from
commercial car wash facilities by requiring all new in-bay and conveyor car
washes to install operational recycled water systems.
Section 58-177. - Applicability
This ordinance applies to all new in-bay automatic car washes and
conveyor car washes permitted and constructed after January 1, 2011. The
provisions of this ordinance do not apply to in-bay car washes and conveyor
commercial car washes that were permitted or constructed before January 1,
2011. The provisions of this ordinance do not apply to self-service car
washes.
Section 58-178. - Commercial Car Wash Water Recycling Requirement
All new in-bay automatic car washes and conveyor car washes,
permitted and constructed after January 1, 2011 must install operational
recycled water systems.
SECTION 2. That this Ordinance shall be designated as Article IV, Car Wash Water
Recycling, of Chapter 58, Utilities, of the City of Milton Code of Ordinances.
SECTION 3. That Sections 156 through 174 of Subdivision III, Prohibited Discharges,
Inspections and Notifications; Division II, Illicit Discharge and Illegal Connection; Article III,
Sewer; Chapter 58, Utilities, of the City of Milton Code of Ordinances be hereby reserved.
SECTION 4. That all Ordinances, parts of Ordinances, or regulations in conflict
herewith are hereby repealed.
SECTION 5. It is the express intent of the Council of the City of Milton that this
Ordinance be consistent with both federal and State law. If any provision of this Ordinance or the
application thereof to any person or circumstances is held invalid, such invalidity shall not affect
other provisions or applications of the Ordinance which can be given effect without the invalid
provision or application, and to this end the provisions of this Ordinance are declared severable.
SECTION 6. That this Ordinance shall become effective upon its adoption.
ORDAINED this the _____ day of ______________, 2010.
Approved:
______________________________
Joe Lockwood, Mayor
Attest:
__________________________
City Clerk
(Seal)
City of Milton
13000 Deerfield Parkway, Milton, Georgia 30004
1
To: Honorable Mayor and City Council Members
From: Christopher Lagerbloom, City Manager
Date: Submitted on October 25, 2010 for the November 1, 2010 Council Meeting
Agenda Item: Approval of an Intergovernmental Agreement for the Provision of Information
Technology Services by and between the City of Johns Creek, Georgia and the
City of Milton, Georgia.
City Manager’s Office Recommendation
Approve the attached Intergovernmental Agreement
Background
The City of Milton explored an opportunity to “share services” with another local jurisdiction
where practical to enhance service delivery, and reduce costs. The Information Technology
Services Department is one example. This agenda item is time sensitive and that is the reason
the DRAFT agreement is provided in this packet. There will be additional information presented
at the meeting as to the particulars of this proposed agreement.
At the time of the publication of this Council agenda, there remain ongoing discussions between
the City Attorney‟s Offices of both cities as well as continued discussion with staff.
This item will be before the Johns Creek City Council prior to coming before the Milton City
Council and therefore, should both cities be able to agree mutually on terms of support, a
document will be presented for consideration which would be considered more „final‟.
Funding and Fiscal Impact
There is a fiscal impact of $17,961 per month. This is offset and actually results in a higher
level of service with less cost in comparing it to the FY11 budget. This will require a future
budget amendment.
Alternatives:
Continue with internally provided services at a higher cost.
Concurrent Review:
Paul Higbee, City Attorney (ongoing)
INTERGOVERNMENTAL AGREEMENT
FOR THE PROVISION OF INFORMATION TECHNOLOGY SERVICES
BY AND BETWEEN
THE CITY OF JOHNS CREEK, GEORGIA and
THE CITY OF MILTON, GEORGIA
THIS INTERGOVERNMENTAL AGREEMENT, by and between the City of Johns
Creek, Georgia (“Johns Creek”) and the City of Milton, Georgia (“Milton”) entered into
this _____ day of November, 2010 (the parties collectively referred to herein as the
“Cities”).
WHEREAS, the City of Johns Creek, Georgia is a municipality created by the 2006 Georgia
General Assembly and incorporated in December 2006; and
WHEREAS, the City of Milton is a municipality created by the 2006 Georgia General Assembly
and incorporated in December 2006; and
WHEREAS, both cities have been performing separate Information Technology (IT) and
Geographic Information System (GIS) functions to support their staffs; and
WHEREAS, it is the mission of both cities to provide efficient services to their residents; and
WHEREAS, both cities desire to enter into an Intergovernmental Agreement to provide a full
range of IT and GIS services to both governments and capitalize on economies of scale that may
be realized by combining services; and
WHEREAS, both Cities wish to agree upon a scope of services and the cost for such services to
effect Johns Creek’s provision of IT and GIS services to the City of Milton; and
WHEREAS, both Cities desire to maintain a mutually beneficial, efficient and cooperative
relationship that will promote the interests of the citizens of both jurisdictions; and
WHEREAS, both Cites have authorized the execution of this Intergovernmental Agreement
through appropriate Resolutions adopted by their respective governing bodies.
NOW THEREFORE, in consideration of the following mutual obligations, Johns Creek
and Milton agree as follows:
ARTICLE I
PURPOSE AND INTENT
1.1 The purpose of this Agreement is to provide Information Technology (IT) and
Geographic Information System (GIS) services to Milton through the utilization of Johns Creek
employees and independent contractors, and thereby provide cost savings to both Cities by
taking advantage of such economies of scale.
1.2 Johns Creek therefore agrees to provide Milton with competent, courteous,
efficient and effective IT services in a manner that is consistent with typical municipal
government operations as defined by the International City/County Management Association
(ICMA)
1.3 Milton will pay for the costs of services delivered under this Agreement as
provided herein and will cooperate with Johns Creek in the provision of such services.
ARTICLE II
DEFINITIONS
2.1 “Full-Time Equivalent (FTE),” which refers to the amount of time an individual
performs services required herein, shall mean that the individual works an average of forty (40)
hours per week in delivering such services, inclusive of vacation, holiday, sick and other leave
whether paid or unpaid.
2.2 “Staff” shall collectively mean all persons providing the services required
hereunder whether such persons are employees or independent contractors of Johns Creek.
“Staff member” shall mean any singular individual comprising “staff.”
2.3 “Tier 1 Support” shall mean the initial support level, which requires staff trained
and experienced in addressing basic IT issues.
2.4 “Tier 2 Support” shall mean a more in-depth and intermediary support level,
which requires staff with more professional training, knowledge and experience than required by
staff capable of addressing only Tier 1 Support issues.
2.5 “Tier 3 Support” shall mean the highest support level, which requires staff with
the professional training, knowledge and experience necessary for handling the most difficult
and complex IT issues.
ARTICLE III
SCOPE OF SERVICES
3.1 IT Services.
3.1.1 Johns Creek will provide staff to Milton in accordance with Exhibit A, which is
attached hereto and incorporated herein, to maintain and control all IT functions for the City of
Milton including, but not limited to, the following: approximately twenty (20) servers and
network appliances, most of which have dedicated roles and run Server 2008 to include Active
Directory, Exchange 2010, SQL Server, Hyper-V, print server, and host third party apps Like
ICOP, Firehouse Web, ARC-GIS and Shoretel (VOIP system), Energov, OSSI Mobile Field
Reporting, Netmotion Wireless, and Tyler Incode applications.
3.1.2 It is generally expected that an experienced staff member will be onsite during
normal business hours (8am to 5pm, Monday through Friday to equate to approximately 2080
hours annually, inclusive of vacation, holiday, sick and other leave whether paid or unpaid). It is
understood that a staff member will be present for all council meetings in order to operate
necessary equipment. Further, each staff member provided by Johns Creek will pass a criminal
background check and drug screening; however, if any staff member has passed a criminal
background check or drug screening performed within the four (4) months preceding the
execution of this Agreement, Milton shall accept the results of same as meeting the requirements
hereof.
3.1.3 Due to the nature of local government, it is expected that Johns Creek will
provide an on-call phone number to handle emergencies that may occur outside normal business
hours. Response to emergency calls should be within one hour.
3.1.4 At the discretion of Johns Creek, Milton will make all systems available for staff
to be able to remote in to each desktop in order to resolve issues from a “help-desk” type setup.
3.1.5 Staff performing Tier 3 Support will provide strategic direction to Milton in order
to assure that Milton will have the opportunity to keep up with technology and remain current
with tools associated with each profession.
3.1.6 Milton’s City Manager will be notified of all major problems and will approve all
overhauls, rebuilds and significant changes.
3.1.7 In accordance with Exhibit A, Johns Creek staff performing Tier 3 Support shall
attend Milton staff meetings as requested by the City Manager of Milton.
3.1.8 In the event the City Manager of Milton becomes dissatisfied with the services
being provided by any staff member, the City Manager of Milton shall address any such
concerns with the City Manager of Johns Creek. If after a reasonable period of time thereafter,
the City Manager of Milton remains dissatisfied with the services being provided by a staff
member, the City Manager of Milton shall have the opportunity to request replacement of any
such staff member. For any such request, the City Manager of Johns Creek will review the
request made and then promptly respond to same.
3.1.9 Johns Creek will promptly notify Milton of any resignations, transfers or
terminations of staff.
3.1.10 Notwithstanding the effective date of this Agreement and Article 5 hereof, Johns
Creek shall not be responsible for providing IT services until December 1, 2010.
3.2 GIS Services.
3.2.1 Johns Creek will provide staff to Milton in order to maintain a GIS system for
Milton. It is understood that this function may be performed from anywhere. It is expected that
an assigned staff member will be available during normal business hours to answer any inquiries
or address any issues related to GIS services. Further, it is expected that an assigned staff
member be available on-site for a minimum of twelve (12) hours per week on at least three (3)
different days for a minimum on-site time of two (2) hours.
3.2.2 Milton’s GIS system will be maintained similarly to Johns Creek’s system and
offer the same level of services to residents and personnel of both cities.
3.3 Equipment.
3.3.1 Annually, IT staff performing Tier 3 Support will prepare a budget and
recommend to the City Manager all equipment needs for Milton for the coming budget year.
3.3.2 The City of Milton will purchase and maintain all equipment necessary to operate
IT services and GIS services in the City of Milton. Both parties agree that Johns Creek shall not
be responsible for the cost to repair, maintain or purchase any equipment utilized by Milton.
3.3.3 Milton will consider all recommendations for equipment and strive to budget for
all replacement programs and maintenance.
ARTICLE 4
COMPENSATION AND CONSIDERATION
4.1 For the services to be rendered pursuant to this Agreement, Milton shall pay to
Johns Creek $17,961.00 per month, which sum shall be remitted to Johns Creek on or before the
15th (fifteenth) day of each month of the term. This amount is due in full each month.
4.2 Notwithstanding the provisions of Article 4.1, since the provision of IT services
shall not commence until December 1, 2010, for the month of November, 2010, Milton shall pay
to Johns Creek the sum of $7,500.00, which shall be remitted to Johns Creek on or before
November 15, 2010.
ARTICLE 5
TERM OF AGREEMENT
5.1 This Agreement shall commence upon execution by all parties to this Agreement
and shall continue in effect for a period of twelve (12) months (“initial term”). Thereafter, this
Agreement shall be renewed for up to five (5) successive twelve (12) month periods (each twelve
(12) month period occurring after the initial term shall be referred to as a “renewal term”), unless
either party provides the other party with notice to terminate the Agreement no less than sixty
(60) calendar days prior to the expiration of the initial term. At the expiration of each renewal
term, this Agreement shall be automatically renewed for an additional twelve (12) month term,
unless either party furnishes the other party written notice of its intent not to renew this
Agreement not less than sixty (60) calendar days prior to the expiration of such renewal term.
5.2 Not less than sixty (60) calendar days prior to the expiration of the initial term or
renewal term, as applicable, Johns Creek shall provide Milton with the cost for services for the
subsequent renewal term. Such change in cost shall be effected by the execution of an
Amendment to Section 4.1 of this Agreement, which shall provide the compensation and
consideration for the subsequent renewal term.
ARTICLE 6
EMPLOYMENT STATUS
No staff provided under this Agreement shall be deemed to be employees of Milton for
any purpose, including but not limited to: employee benefits, grievance, payroll, pension,
promotion, annual or sick leave, standards of performance, training, workers compensation or
disciplinary functions. However, Milton acknowledges and agrees that, except for those staff
members identified in Exhibit A as providing Tier 3 Support, all other staff members are the
employees of an independent contractor, and not the employees of, Johns Creek.
ARTICLE 7
RECORDKEEPING
Both parties agree that the public shall have access, at all reasonable times, to all
documents and information pertaining to the services provided hereunder to Milton, subject to
the provision of O.C.G.A. §50-14-1 et seq., and Johns Creek agrees to require its independent
contractor providing services hereunder to allow access by Milton and the public to all
documents subject to disclosure under applicable law. Johns Creek further agrees to require its
independent contractor providing services hereunder to retain all public records in accordance
with Milton’s records retention and disposal policies, O.C.G.A. 50-18-92 et. seq. and the Georgia
Administrative Code.
ARTICLE 8
INDEMNIFICATION
8.1 It is the intent of the parties to be covered by the sovereign immunity granted by
Georgia law. Only to the extent permitted by law, Johns Creek shall defend, indemnify and hold
harmless Milton and its officers, employees, or agents from any and all liability, losses or
damages, including attorneys’ fees and costs of defense, which Milton 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 Johns Creek, its employees, officers and agents. Milton shall promptly notify
Johns Creek of each claim, assert all statutory defenses, cooperate with Johns Creek in the
defense and resolution of each claim and not settle or otherwise dispose of the claim without
Johns Creek’s participation.
8.2 It is the intent of the parties to be covered by the sovereign immunity granted by
Georgia law. Only to the extent permitted by law, Milton shall defend, indemnify and hold
harmless Johns Creek and its officers, employees, or agents from any and all liability, losses or
damages, including attorneys’ fees and costs of defense, which Johns Creek 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 Milton, its employees, officers and agents. Johns Creek shall
promptly notify Milton of each claim, assert all statutory defenses, cooperate with Milton in the
defense and resolution of each claim and not settle or otherwise dispose of the claim without
Milton’s participation.
8.3 Notwithstanding the foregoing provisions of this Article 8, Milton acknowledges
and agrees that many of the services provided within this Agreement are provided by an
independent contractor of Johns Creek. Accordingly, to the extent any such liability, losses or
damages, including attorneys’ fees and costs of defense, are incurred by Milton or its officers,
employees, or agents, 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 actions or omissions
of Johns Creek’s independent contractor, Milton agrees that it will look solely to such
independent contractor for any indemnification provided hereunder.
8.4 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 9
EVENT OF DEFAULT
9.1 An event of default shall mean a material breach of this Agreement by Johns
Creek as follows:
9.1.1 Johns Creek repeatedly disregards reasonable priorities established by the
City Manager of Milton which Johns Creek is required to observe by this Agreement
and which have been communicated in writing by action of the City Council to Milton
on more than one occasion.
9.1.2 Johns Creek does not provide sufficient staff in accordance with this
Agreement.
9.2 An event of default shall mean a material breach of this Agreement by Milton as
follows:
9.2.1 Milton fails to provide sufficient equipment for the successful delivery of services
provided herein, as recommended by Johns Creek.
9.2.2 Milton fails to make timely payment of the sums provided in Article 4.
ARTICLE 10
TERMINATION AND REMEDIES
10.1 Except as outlined in Article 5 of this Agreement, the Cities may terminate this
Agreement only for an event of default, unless the default is cured as provided in this article.
10.2 If an event of default occurs in the determination of Milton, Milton shall notify
Johns Creek in writing, specify the basis for the default and advise Johns Creek that the default
must be cured to Milton’s reasonable satisfaction within a sixty (60) day period. Milton may
grant additional time to cure the default, as Milton may deem appropriate, without waiver of any
of its rights, so long as Johns Creek has commenced curing the default and is effectuating a cure
with diligence and continuity during the sixty (60) day period, or any longer period which Milton
prescribes. Failure to cure the default within the applicable period of time shall make this
Agreement subject to immediate termination by Milton.
10.3 Except for an event of default caused by Milton’s failure to make timely payment
of the sums provided for in Article 4, if an event of default occurs in the determination of Johns
Creek, Johns Creek shall notify Milton in writing, specify the basis for the default and advise
Milton that the default must be cured to Johns Creek’s reasonable satisfaction within a sixty (60)
day period. Johns Creek may grant additional time to cure the default, as Johns Creek may deem
appropriate, without waiver of any of its rights, so long as Milton has commenced curing the
default and is effectuating a cure with diligence and continuity during the sixty (60) day period,
or any longer period which Johns Creek prescribes. Failure to cure the default within the
applicable period of time shall make this Agreement subject to immediate termination by Johns
Creek.
10.4 If an event of default occurs as a result of Milton’s failure to make timely
payment of the sums provided for in Article 4, this Agreement shall be subject to immediate
termination by Johns Creek.
10.5 In the event that either party breaches any other material term or condition of this
Agreement, other than a material breaching constituting an event of default, the party in breach,
upon receipt of a written request from the non-breaching party, shall remedy the breach within
thirty (30) days of receipt of the request. If the breach is not cured within the specified time
period, the non-breaching party may utilize the remedies of declaratory judgment, specific
performance, mandamus or injunctive relief to compel the breaching party to remedy the breach.
10.6 The parties reserve all available remedies afforded by law to enforce any term or
condition of this Agreement.
ARTICLE 11
NOTICES
All required notices shall be given by first class mail, except that any notice of termination
shall be mailed via U.S. Mail, return receipt requested. Notices shall be addressed to the parties
at the following addresses:
If to the City of Johns Creek: John J. Kachmar, Jr., City Manager
City of Johns Creek
12000 Findley Rd., Suite 400
Johns Creek, Georgia 30097
With a copy to: William F. Riley, Jr., City Attorney
City of Johns Creek
12000 Findley Rd., Suite 400
Johns Creek, Georgia 30097
If to the City of Milton: Christopher J. Lagerbloom, City Manager
13000 Deerfield Parkway
Suite 107
Milton, Georgia 30004
With a Copy to:
Ken Jarrard, City Attorney
Jarrard & Davis, LLP
105 Pilgrim Village Drive, Suite 200
Cumming, Georgia 30040
ARTICLE 12
NON-ASSIGNABILITY
Except as otherwise provided for herein, neither of the Cities shall assign any of the
obligations or benefits of this Agreement without the mutual written consent by resolution of the
council of the other City.
ARTICLE 13
ENTIRE AGREEMENT
The Cities acknowledge that the terms of this Agreement constitute the entire
understanding and agreement of the Cities regarding the subject matter of this Agreement.
ARTICLE 14
AMENDMENT
This Agreement may be modified at any time upon mutual written consent by resolutions
of the councils of the Cities.
ARTICLE 15
SEVERABILITY
If a court of competent jurisdiction renders any provision of this Agreement (or any
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 portion were not part of this Agreement.
ARTICLE 16
BINDING EFFECT
This Agreement shall inure to the benefit of, and be binding upon, the respective Cities’
successors, heirs and assigns.
ARTICLE 17
COUNTERPARTS
This Agreement may be executed in several counterparts, each of which shall be an
original, and all of which shall constitute but one and the same instrument.
ARTICLE 18
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 County.
IN WITNESS WHEREOF, the Participating Cities have executed this Agreement
through their duly authorized officers on the day and year first above written.
CITY OF JOHNS CREEK, GEORGIA
ATTEST:
__________________________________ _________________________________
Michael E. Bodker, Mayor City Clerk
(SEAL)
Approved as to form:
__________________________________ _________________________________
William F. Riley, Jr., City Attorney John Kachmar, City Manager
CITY OF MILTON, GEORGIA
ATTEST:
__________________________________ _________________________________
Joe Lockwood, Mayor City Clerk
(SEAL)
Approved as to form:
__________________________________ _________________________________
Ken Jarrard, City Attorney Christopher J. Lagerbloom, City Manager
ATTACHMENT A-1
ATTACHMENT A-2
ATTACHMENT A-3