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HomeMy WebLinkAboutCADI GEORGIA BANK & TRUST COMPANY AGREEMENT STATE OF GEORGIA ) ) AGREEMENT COUNTY OF RICHMOND ) THIS AGREEMENT made and entered into this J.J!t:y of February, 2010, by and among Augusta-Richmond County (hereinafter referred to as "ARC"), a political subdivision of the State of Georgia through its Board of Commissioners (hereinafter referred to as the "Board"), Oean Augusta Downtown Initiative, Inc., (hereinafter referred to as "CADI"), and Georgia Bank & Trust Company of Augusta (hereinafter referred to as the "Bank"). R E C I TAL S: The Georgia General Assembly established city business districts which are deteriorating in cities of Georgia and established the City Business Improvement District Act (hereinafter referred to as the "Act") to restore and promote commercial and other activities within those districts. a.C.G.A. ~36-43-1, et seq. Pursuant to O.C.G.A. ~36-43-4(3), the Board is authorized to enter into agreements to provide supplemental services with non-profit organizations. The Board is also authorized pursuant to a.c.G.A. 936-60-14 to enter into agreements for one year or less with private non-profit organizations which are exempt from federal income taxes pursuant to Sections 501(c)(3) or 501(c)(6) of the Internal Revenue Code for the purposes of an increase in trade, industry and to otherwise promote the general welfare of the county or municipality. CADI is a non-profit organization under Section 501(c)(6) of the Internal Revenue Code. CADI entered into a contract dated February 4, 2008, with Service Group Incorporated to provide certain enhanced safety, hospitality and maintenance services in the Business Improvement District (hereinafter referred to as the ''BID''). To pay for such services it , is necessary that CADI establish a line of credit with bank so that it may pay for such services during the year prior to the time that funds are receiv by ARC pursuant to Ordinance Number 6988. NOW, THEREFORE,. in considerati n of the mutual covenants hereinafter contained with each of the parties intending to be boun hereby, it is agreed that: 1. Line of Credit. CADI has m e arrangements with the Bank to borrow up to $325,000 in order to make monthly payments to e contractor providing the services stated above. CADI will only pay for services actually perfo ed prior to payment and will not pay for future or anticipated services. 2. Revenue Received. ARC sh 11 receive funds from the real property owners in the area under the BID Ordinance and wi make the funds collected under the BID Ordinance (less the fees to ARC) available to CADI or its assignee. 3. Prior Lien Held By Bank. C I acknowledges that the Bank has a prior and secured lien and right to all funds collected by C 1lllder the BID Ordinance during 2010. ARC will continue making payments to CADI as A C receives the fees collected with the ad valorem taxes. However, to the extent that the right to eceive such funds is assigned to the Bank and the Bank has elected to exercise the right to reed e such funds and has provided ARC with notice of same, ARC will begin to make the funds co lected under the BID Ordinance (less the fees to ARC) available to Bank as assignee. ARCsh I not be held liable to Bank for any loan entered into by CADI. Nor does ARC waive any ri 18 it may have to collect from CADI any unpaid amounts advanced to CADI by ARC. 4. Lesdslative Modification. No withstanding any other provision of this Agreement to the contrary, in the event that any fedt, stale, or local law, rule, regulation, or 2 , interpretation thereof, restricts, prohibits or in any way materially changes the method or amount of reimbursement or payment for services under this Agreement any time during the term of this Agreement, then this Agreement shall, to the extent permitted by the laws of Georgia, be deemed amended by the parties to provide for payment of compensation and other fees in a manner consistent with any such prohibition, restriction or limitation. ..5. Indemnification. CADI hereby waives, releases, relinquishes, discharges and agrees to indemnify, protect, and hold harmless ARC and the Board, and their respective employees, agents, partners, representatives, directors, servants, attorneys, predecessors, successors and assigns (hereinafter referred to as the "Indemnitees") from any and all Claims, demands, liabilities, losses, costs, and/or expenses for any loss or damage, including but not limited to bodily injury, personal injury, death, property damage, libel, slander, defamation and/or invasion of privacy arising out of CADI's performance WIder this Agreement as a result of any act of omission, whether intentional or negligent on the part of CADI's employees or agents, or as a result of the application or violation of any pertinent federal, state or local law, rule or regulation by CADI's employees or agents. This indemnification applies notwithstanding the fact that third parties or the Indemnitees may be partially responsible for the situation resulting in the claim or the claim results in a monetary obligation that exceeds any contractual commitment. This indemnification extends to the successors and assigns of CADI, and survives the tennination of the Agreement, and to the extent, allowed by law, the bankruptcy of CADI. This indemnification does not apply if the claim arises from the willful and wanton misconduct or sole negligence of the Indemnitees. 3 , If, and to the extent such damage or loss as covered in this indemnification is covered by the State Tort Claims Fund established and maintained by the Department of Administrative Services, CADI agrees to reimburse any and all amounts paid out by the State Tort Claims Fund. To the full extent permitted by the Constitution and the laws of the State of Georgia, and the terms of the State Tort Claims Fund, CADI and its insurers waive any right of subrogation against the Indemnitees and insurers participating thereunder. CADI shall, at its expense, be entitled to, and shall have the duty to participate in the defense of any suit against the Indemnitees. No settlement or compromise of any claim, loss or damage entered into by the Indemnitees shall be binding upon CADI unless approved in writing by CADI. No settlement or compromise of any claim, loss or damage entered into by CADI shall be binding upon the Indemnitees unless approved in writing by the Indemnitees. 6. Duration. This Agreement shall terminate at 11 :59 p.m., on December 31,2010, but additional revenue collected after this date by ARC pursuant to the BID Ordinance will be turned over to CADI or its assignee provided all amounts due to ARC have been paid. This Agreement may be renewed for 2011 and 2012 by supplemental agreement signed by the parties stating such during the thirty (30) day period ending on December 31 st of each year with a final termination on December 31, 2012, unless renewed by ordinance. 7. kencv. None of the parties to this Agreement become the agent of the other under this Agreement; and each will continue to perform its statutory functions ap.d the functions transferred or retained under this Agreement at its own, sole cost and responsibility, independently of the other. No party will be responsible for the contracts, nor other obligations of the other except as specifically stated and transferred hereinbove. 4 8. Severability. If any term or provision in t his Agreement shall be deemed illegal or unenforceable; then, notwithstanding the offending terms or provisions, this Agreement shall remain in full force and effect and such terms or provisions shall be deemed stricken. 9. Assi2nment. Neither the Board nor CADI nor the Bank shall assign its respective obligations arising out of this Agreement, without the prior written consent of the other parties. 10. Waiver. The waiver by any party of any breach of any provision contained in this Agreement shall not be deemed to be a waiver of such provision on any subsequent breach of the same or any other provision contained in this Agreement. 11. Other Provisions. During the performance of this Agreement, the parties agree to abide by the terms of Executive Order 11246 on nondiscrimination and will not discriminate against any person because of race, color, religion, sex, or national origin. The participants will Wee affirmative action to ensure that applicants are employed without regard to their race, color, religion, sex or national origin. No member of or delegate to Congress, or resident Commissioner, shall be admitted to any share or part of this Agreement or any benefit that may arise therefrom; but this provision shall not be construed to extend to this Agreement if made with a corporation for its general benefit. The parties agree that any contracts developed and awarded pursuant to this Agreement and all work and procedures related to said contracts, shall, at all times, conform to the applicable federal and state laws, rules, regulations, orders and approvals, including specifically, procedures and requirements relating to labor standards, equal employment 5 opportunity, nondiscrimination, compliance with Americans With Disabilities Act, anti- solicitation, information and auditing and reporting provisions. ,12. Governine Law. This Agreement shall be construed in accordance with, and governed by, the laws of the State of Georgia, and jurisdiction shall lie in the Superior Court of Richmond County, Georgia. 13. Complete Aereement. This Agreement sets forth all provisions and understandings between the parties. There are no provisions, understandings, representations, or inducements, either oral or written, between the parties other than those hereinabove set forth. It is further understood and agreed that no subsequent alteration, amendment, modification, change or addition to this Agreement shall be binding upon the parties hereto unless the same is reduced to writing and signed by the parties to this Agreement. 14. Notice. All notices under this Agreement shall be deemed duly given upon delivery, if delivered by certified mail to the party at the address set forth below: As to ARC: Mr. Fred Russell ARC-County Administrator 530 Greene Street, Suite 806 Augusta, GA 30911 As to CADI: Mr. Robert Kuhar CADI President 936 Broad Street, Suite 107 Augusta, GA 30901 As to the Bank: Mr. Jay B. Forrester Georgia Bank & Trost Company of Augusta Group Vice President-Senior Lending Officer Post Office Box 15367 Augusta, GA 30919-5367 15. Representation and Warranty. EACH PARTY HERETO REPRESENTS AND WARRANTS TO THE OTHR THAT: CA) THE EXECTION AND 6 DELIVERY OF THIS AGREEMENT AND THE PERFORMANCE OF ITS OBLIGATIONS HEREUNDER BY SUCH PARTY HAVE BEEN DULY AUTHORIZED, AND THAT THE AGREEMENT IS A VALID AND LEGAL AGREEMENT BINDING ON SUCH PARTY AND ENFORCEABLE IN ACCORDANCE WITH ITS TERMS; AND (B) THE EXECUTION AND DELIVERY OF THIS AGREEMENT AND PERFORMANCE OF ITS OBLIGATIONS HEREUNDER BY SUCH PARTY DOES NOT AND WILL NOT CONFLICT WITH, OR RESULT IN, BREACH OF ANY AGREEMENT, INDENTURE, OR OTHER INSTRUMENT BINDING ON SUCH PARTY. IN WITNESS WHEREOF, this Agreement is executed as of the date :first written above. Augusta-Richmond County BY: cJ2J 5{. ~ A6Wi D.avid S. Copenha ;r/1 . 't-\. TItle: ayor 14 /> ~}0 'V In ' )- ATTEST: i' CLEAN AUGUSTA DOWNTOWN INITIATIVE, INC. BY: T.~ ~~ ~ I ATTES~~~ 7~ Title: Treasurer 7 GEORGIA BANK & TRUST COMPANY OF AUGUSTA BY: , J B. Forces itle: Group Vice Ptesident- Senior Lending Officer ATTEST: ~ ~ 8 L Title: 1/(/ R ~ .,. 8 STATE OF GEORGIA ) ) ) ASSIGNMENT OF CONTRACT RIGHTS COUNTY OF RlCHMOND 11f1</ By Agreement dated February ~, 2010, Clean Augusta Downtown Initiative, Inc., (hereinafter referred to as "CADI"), made arrangements to open a line of credit with Georgia Bank & Trust Company of Augusta (hereinafter referred to as the "Bank"), of up to $325,000, and CADI agreed to assign its right to receive funds from Augusta-Richmond County (hereinafter referred. to as "ARC") to the Bank as collateral to secure its line of credit. NOW, THEREFORE, for and in consideration of the sum of Ten and nolI 00 Dollars ($10.00) and the agreement set out herein, CADI does hereby transfer, assign and set over to the Bank all of its right, title and interest to receive funds from ARC as provided. in said Agreement, and ARC does hereby acknowledge that all of the right, title and interest or CAD! to said funds described in said Agreement have been assigned to the Bank. as its Assignee. ,~ IN WITNESS WHEREOF, this Assignment is executed as of the L2 day of February, 2010. CLEAN AUGUSTA DOWNTOWN INITIAT C.