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HomeMy WebLinkAboutCADI MEMORANDUM OF UNDERSTANDING MEMORANDUM OF UNDERSTANDING THIS CONTRACT and AGRE~(hereinafter referred to as "Agreement") was made and entered into this /1~day of 2009, by and between the Augusta-Richmond County (hereinafter referre~s "ARC"), a political subdivision of the State of Georgia through its Board of Commissioners, (hereinafter "Board") and Clean Augusta Downtown Initiative, Inc. (hereinafter referred to as "CADI"). WHEREAS, the Georgia General Assembly saw a necessity for revitalizing established city business districts which are deteriorating in large cities of Georgia and established the City Business Improvement District Act (hereinafter referred to as "Act") to restore and promote commercial and other business activity within those districts. . WHEREAS, Board is authorized pursuant to O.G.G.A. ~36-30-4(3) of the Act "to provide supplemental services or contract with non- profit organizations" to effect the purpose of the Act in Augusta, Georgia. WHEREAS, Board is also authorized by law, pursuant to O.C.G.A. ~36-60-14, to enter into agreements for one year or less with private non-profit organizations in accordance with ~~501(c)(3) and 501(c)(6) of the Internal Revenue Code, for the purpose of increasing trade, industry, or new business into the county, or the improvement of general welfare of the county; WHEREAS, Board has recognized the importance of the mission of the CADI; WHEREAS, CADI is a non-profit organization with 501(c)(6) status with the Internal Revenue Service; WHEREAS FURTHER, CADI has entered into a construction project with financial commitments, which necessitates a source of revenue to meet these commitments to complete this project and ARC is willing to provide such revenues as herein specified for CADI; and . WHEREAS FURTHER, Board desires to assist CADI by advancing monies with a security interest in this endeavor; NOW, THEREFORE, in consideration of their mutual covenants and within the limitations of this Agreement, Board and CADI hereby agree that: SECTION I The Board covenants and agrees to advance an aggregate principal amount of two hundred ninety-one thousand six hundred dollars ($291,600), to bear zero percent (0%) interest per annum, and CADI covenants and agrees to pledge tax revenues which will be collected in December of 2009 as security for payment the advance. . 1 SECTION II The Board covenants and agrees to remit an administrative fee of two (2) percent on all amounts advanced to it pursuant to this agreement by ARC. Said administrative fee shall be remitted by the Board to ARC in quarterly installments. a. DURATION This Agreement shall commence on the date of the delivery of the funds to CADI, and shall be in effect until 11 :59 p.m. on December 31, 2009 when the anticipated revenue from the special tax is anticipated; however, CADI has the option to extend the Agreement for up to thirty days. Such option must be exercised in writing no more than thirty (30) days prior to the termination date of the Agreement. b. FUNDING SOURCE The Board shall issue payment to be made from funds derived from its general funds or any other funds lawfully available to it for such purposes to provide monies sufficient to fulfill its obligation. c. SECURITY INTEREST In order to assure that the ARC will acquire payment from CADI, the parties hereby agree that there is hereby a superior lien created on the tax revenues that will be received by CADI in December of2009. d. LEGISLATIVE MODIFICATION Notwithstanding any other provision of this Agreement to the contrary, in the event that any federal, state, or local law, rule, regulation, or 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. e. INDEMNIFICATION CADI hereby waives, releases, relinquishes, discharges and agrees to indemnify, protect and hold harmless the ARC and the Board, and their respective employees, agents, partners, representative, directors, servants, attorneys, predecessors, successors, and assigns (hereinafter referred to as the "Indemnitees") from any and all claims, demands, liabilities loss, costs, and/or expenses for any loss or damage, including but not 2 limited to bodily injury, personal injury, death, property damage, libel, slander, defamation and/or invasion of privacy arising out of CADI's performance under 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 termination 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. 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. f. TERMINATION The Board may, in its sole discretion, determine that CADI is failing to substantially comply with the terms and conditions of this Agreement. The Board shall provide written notice thereof to CADI. The notice must identify specific incidents or circumstances comprising the failure of performance. As soon as is practicable, but no more than five (5) business days after receipt of said notice, the appropriate representative of both parties shall meet to discuss the complaint. In the event the complaint is not resolved within the amount of time mutually agreed upon by both parties, the Board may terminate this Agreement upon three (3) calendar days written notice to CADI. CADI shall refund to ARC the previously paid monies pro rata from the date of termination for unearned services. This Agreement may be terminated immediately in the event that any of the following occurs: CADI becomes insolvent or liquidation or dissolution of CADI is initiated; a 3 voluntary or involuntary bankruptcy petition is filed by or against CADI under the United States Bankruptcy Code or any similar petition under any state insolvency law; an assignment is made by CADI for the benefit of creditors; a proceeding for the appointment of a receiver, custodian, trustee, or similar agent is initiated with respect to CADI. Either party may terminate this Agreement by providing thirty (30) days written notice to the non-terminating party. CADI shall refund to ARC the previously paid monies for unearned services. g. AGENCY Neither Party becomes the agent of the other under this Agreement, and each will continue to perform its statutory functions and the functions transferred or retained under this Agreement at its own, sole cost and responsibility, independently of the other. Neither party will be responsible for the contracts, nor other obligations of the other except as specifically stated and transferred hereinabove. h. SEVERABILITY If any term or provision in this Agreement shall be deemed illegal or unenforceable; then, notwithstanding the offending terms or provisions, this Agreement shall remain in full force in effect and such terms or provisions shall be deemed stricken. i. ASSIGNMENT Neither Board nor CADI shall assign its respective obligations arising out of this Agreement, without the prior written consent of the other party. j. WAIVER The waiver by either party of any breach of any provlSlon 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. k. 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 take 4 affirmative action to ensure that applicants are employed without regard to their race, color, religion, 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 opportunity, nondiscrimination, compliance with Americans with Disabilities Act, anti-solicitation, information, and auditing and reporting provisions. l. GOVERNING 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. m. COMPLETE AGREEMENT 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. 23. NOTICE All notices under this Agreement shall be deemed duly given upon delivery, if delivered by certified mail to the party at the addresses set forth below: Fred Russell ARC-County Administrator 530 Green Street, Suite 806 Augusta, Georgia 30901 Robert Kuhar CADI President 416 Eighth Street Augusta, Georgia 30901 24. REPRESENTATION AND WARRANTY 5 EACH PARTY HERETO REPRESENTS AND WARRANTS TO THE OTHER THAT: (A) THE EXECUTION AND DELIVERY OF THIS AGREEMENT AND THE PERFORMANCE OF ITS OBLIGATION 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 THE 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 the date first written above. Augusta-Richmond County By: UJ4- ~ Name: David S. Cope haver Title: Mayor ~\ 0'\ ~\\ ~ I rk of Commission Clean Augusta Downtown Initiative, Inc. ~0L~a By:.t~ - f ~ Name: Robert~har Title: Presid~t Attest://hL~ ~ t'Sanford Loyd, Tr asurer [SEAL] [SEAL] 2v'(Jtv~.W~ 6