HomeMy WebLinkAboutSTRATEGIC ADVISORY GROUP LLC TEE CENTER
AGREEMENT FOR
FACILITY DEVELOMENT CONSULTING SERVICES
BETWEEN
Augusta, Georgia, a political subdivision of the State of Georgia
Acting by and through the
Augusta Richmond County Commission
Hereinafter Referred to as Owner
AND
Strategic Advisory Group, LLC, a Georgia Corporation
Hereinafter Referred to as Facility Development Consultant
PROJECT: Trade, Exhibit and Event (TEE) Center
for Augusta Richmond County
DATE: April 18, 2006
AGREEMENT FOR FACILITY DEVELOPMENT CONSULTANT SERVICES
Article 1
Article 2
Article 3
Article 4
Article 5
Article 6
Article 7
Article 8
Article 9
Article 10
Article 11
Article 12
Article 13
Article 14
Exhibit A
TABLE OF CONTENTS
Page
D efini tio ns .......................................................................................................... 1
Relationship of the Parties.............................................................. ...................2
Basic Services..................................................................................................... 3
Compensation............................. ........................................................................ 4
Period of Services............................................................................................... 6
Owner's Responsibilities.................................................................................... 6
Notices................................................................................................................ 7
Insurance............................... ............................................................................. 7
Indemnifica tion .................................................................................................. 8
Termination of Agreement........ ................................................................... ......9
Dispute Resolution.......................................................................................... .10
Successors/Assignment/Third Parties......... .... ........ ..... .............. ...... .... .... .... ...11
Ownership of Documents/
Confidential Information.............................................................................. ...11
Additional Provisions...................................................................................... .12
Strategic Advisory Group Proposal Letter..........................................................
AGREEMENT FOR
FACILITY DEVELPOMENT CONSULTING SERVICES
AGREEMENT made this 18th day of April, 2006, BETWEEN the Owner: Augusta,
Georgia, a political subdivision of the State of Georgia, acting bv and through the Augusta
Richmond Countv Commission and the Facility Development Consultant: Strategic
Advisorv Group, LLC, a Georgia corporation for Professional Services in connection with
the Project known as: Augusta Trade, Exhibit and Event Center.
The Construction Program Manager for the Project is: Heery International, Inc.
The Owner and the Facility Development Consultant agree as set forth below:
ARTICLE 1
DEFINITIONS
The following words and phrases where appearing in initial capitalization, shall for the
purposes of this Agreement have the following meanings:
1.1 PROJECT. The Project shall be a market feasibility study and facility design
program, as described in Exhibit A, to be conducted in conjunction with Augusta
Richmond County's proposed new Trade, Exhibit and Events Center (hereinafter
refered to as the TEE Center).
1.2 SERVICES. The Services to be performed by the Facility Development
Consultant under this Agreement shall consist of the services defined by Exhibit
A, except as modified herein.
1.3 PROJECT DOCUMENTS. The Services shall include a report, prepared by the
Facility Development Consultant and approved by the Owner prior to the
distribution to the TEE Center designer.
1.4 COMPENSATION. Compensation shall be fees designated in Article 4 to be paid
by the Owner to the Facility Development Consultant in connection with the
performance of the Basic Services by the Facility Development Consultant.
1.5 REIMBURSABLE EXPENSES. Reimbursable Expenses are those actual
expenditures made by the Facility Development Consultant, its employees, or its
Professional Consultants in the interest of the Project including but not limited
to, County standard per diem out'of'pocket expenses for travel and living
expenses in connection with the Project, long distance telephone, expressage,
professional consultants (other than those required for the performance of the
Basic Services), and Owner-approved document reproduction.
1.6 OWNER/CONSTRUCTION PROGRAM MANAGER CONTRACT. The
Owner/Construction Program Manager Contract is the agreement between the
Owner and the Construction Program Manager dated May 6, 2004 for the
performance of construction program management services on the Project.
1.7 CHANGE ORDER. A Change Order is the form of documentation from the
Owner approving and authorizing a modification to previously approved contract
documents.
ARTICLE 2
RELATIONSHIP OF THE PARTIES
2.1 FACILITY DEVELOPMENT CONSULTANT SERVICES. The Facility
Development Consultant shall provide professional Facility Development
services for the Project in accordance with the terms and conditions of this
Agreement. The Facility Development Consultant's performance of services shall
be as professional consultant to the Owner to carry out the activities of Project
and to provide the technical documents and supervision to achieve the Owner's
Project objectives.
2.2 OWNER REPRESENTATION. The Construction Program Manager is under
separate contract with the Owner to provide construction program management
services. The Construction Program Manager has no Facility Development
responsibilities of any nature. None of the activities of the Construction Program
Manager supplant or conflict with the services and responsibilities customarily
furnished by the Facility Development Consultant or subconsultants in
accordance with generally accepted Facility Development consulting practices,
except as otherwise modified by this Agreement. The Facility Development
Consultant understands and agrees that the Construction Program Manager is
an Owner's representative to the Facility Development Consultant and
Contractor insofar as this Agreement is concerned. Instructions by the Owner to
the Facility Development Consultant relating to services performed by the
Facility Development Consultant will be copied to the Construction Program
Manager. All communications and submittals of the Facility Development
Consultant to the Owner shall be issued or copied to the Construction Program
Manager, unless the Owner shall otherwise direct.
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2.2.1 Facility Development Consultant understands and agrees that it is not a third
party beneficiary of any contract between the Owner and the Construction
Program Manager or of their performance there under. Facility Development
Consultant waives any rights, claims or causes of action it may have as an alleged
third party beneficiary of any such contract or of the performance of the parties
there under.
2.4 DIVISION OF RESPONSIBILITIES/SERVICES. The Facility Development
Consultant understands and agrees that should the Construction Program
Manager provide the Facility Development Consultant with any estimating
assistance, cost or time control recommendations or other consultation,
recommendations or suggestions, any or all such activities on the part of the
Construction Program Manager or any other representative of the Owner shall in
no way relieve the Facility Development Consultant of the responsibility of
fulfilling its obligations and responsibilities under this Agreement.
ARTICLE 3
BASIC SERVICES
3.1 SCOPE OF SERVICES
Augusta Richmond County proposes to construct a new exhibition center in a yet
to be determined location..
The scope of work will include an update to an existing convention center market
analysis and facility design programming, as described in Exhibit A.
3.2
FACILITY DEVELOPMENT CONSULTANT'S
RESPONSIBILITY AND STANDARD OF CARE
PROFESSIONAL
3.2.1 By execution of this Agreement, the Facility Development Consultant warrants
that (a) it is an experienced Facility Development firm having the skill and the
legal and professional ability necessary to perform all the Services required of it
under this Agreement in connection with the Project contemplated herein; (b) it
has the capabilities and resources necessary to perform its obligations hereunder;
and (c) it is familiar with current laws, rules and regulations which are applicable
to the Project.
3.2.2 The Facility Development Consultant hereby represents and agrees that the
market report and building programming document prepared by it pursuant to
this Agreement shall be complete and functional for the purposes intended,
except as to any deficiencies which are due to causes beyond the control of the
Facility Development Consultant.
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3.2.3 The Facility Development Consultant shall be responsible for any errors,
inconsistencies or omissions in the documents. While the Facility Development
Consultant cannot guarantee the various documents required herein to be
completely free of minor human errors and omissions, it shall be the
responsibility of the Facility Development Consultant throughout the period of
performance under this Agreement to use due care with professional competence.
I The Facility Development Consultant will correct at no additional cost to the
Owner any and all errors and omissions in the documents prepared by the
Facility Development Consultant.
3.3 PROJECT CONFERENCES
Throughout all phases of the Project, the Facility Development Consultant and its
consultants shall meet periodically with the Owner and Construction Program
Manager when reasonably requested. Attendees shall be as jointly determined by
the Owner, Construction Program Manager and Facility Development Consultant.
As a minimum, regularly scheduled meetings which the Facility Development
Consultant will attend include:
1. Project Launch Meeting
2. Preliminary Market Study Review Meeting
3. Final Market Study Review Meeting
4. Hotel Operator Meeting
5. Preliminary Programming Review Meeting
6. User Focus Group Meeting
7. Final Programming Review Meeting
ARTICLE 4
COMPENSATION
4.1 BASIC SERVICES COMPENSATION
4.1.1 The Owner shall compensate the Facility Development Consultant in accordance
with the terms and conditions of this Agreement, including the following:
4.1.2 For the Basic Services of the Facility Development Consultant, Basic Services
Compensation shall be a variable, not-to-exceed fee of One Hundred Thirty
Thousand Dollars ($ 130,000.00).
4.1.3 The Basic Services Compensation stated in Paragraph 4.1.1 includes all
compensation and other payments due the Facility Development Consultant
(manpower, overhead, profit, direct costs, etc.) in the performance of the Basic
Services.
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4.2 PAYMENTS TO THE FACILITY DEVELOPMENT CONSULTANT. Payments to
the Facility Development Consultant shall be made as follows:
4.2.1 Payments for Basic Services shall be made following submission, review and
approval of detailed invoices, with line items indicating each individuals time
spent.
4.2.2 If the Project is suspended for more than six months or abandoned in whole or in
part by the Owner, the Facility Development Consultant shall be paid
compensation for services performed prior to receipt of written notice from the
Owner of such suspension or abandonment, and all reasonable termination
expenses resulting from such suspension or abandonment. If the Project is
resumed after being suspended for more than six months, the Facility
Development Consultant's Basic Services Compensation shall be equitably
adjusted.
4.2.3 If Owner fails to make any payment due Facility Development Consultant for
services and expenses within thirty (30) days after receipt of Facility
Development Consultant's bill therefore, the Facility Development Consultant
may, after giving seven (7) days written notice to the Owner, suspend services
under this Agreement until he has been paid in full all amounts due him for
services and expenses.
4.3 ADDITIONAL SERVICES COMPENSATION
4.3.1 With respect to any additional services not specifically addressed herein,
performed by the Facility Development Consultant hereunder, the Facility
Development Consultant and Owner shall negotiate an equitable adjustment to
the Basic Services Compensation. However, if negotiations are not successful
prior to the time the additional services are needed, the Owner may elect to
contract with another entity to perform the Additional Service(s); or the Owner
may direct the Facility Development Consultant to proceed with the Additional
Services on a time spent basis with Additional Compensation Services to be
computed utilizing the same fixed rates as enumerated in Exhibit A.
4.3.1.1 Should the Owner elect to contract with a separate entity to perform Additional
Services, as described under Paragraph 4.3.1, the Facility Development
Consultant shall comply with reasonable requests from Owner, without
additional compensation, with regards to coordination of work with the respective
separate entity.
4.3.2 Payments for Additional Services of the Facility Development Consultant shall be
made monthly upon presentation of the Facility Development Consultant's
statement of services, fully supported by invoices, time cards, and other
documentation as requested by the Owner.
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4.4 ACCOUNTING RECORDS
4.3.3 Records of the Facility Development Consultant with respect to Additional
Services and payroll, consultant and other expenses (including Reimbursable
Expenses) pertaining to the Project, shall be kept on generally accepted
accounting principals and shall be available to the Owner or its authorized
representative for inspection and copying at mutually convenient times.
4.3.4 At the request of the Owner or its authorized representative the Facility
Development Consultant will supply in a timely manner and certify as accurate,
unaltered copies of all time sheets, invoices, and other documents to substantiate
and document any and all Additional Services and Reimbursable Expenses.
ARTICLE 5
PERIOD OF SERVICE
5.1 Unless earlier terminated as provided in Article 10 hereof, this Agreement shall
remain in force for a period which may reasonably be required for the Basic
Services and Additional Services hereunder. However, the provisions of the
Agreement relating to Professional Responsibility (Paragraph 3.2); Dispute
Resolution (Article 11); Professional Liability coverage (Article 8); Indemnification
(Article 9); and Ownership of Documents/Confidential Information (Article 13)
shall remain in effect after termination of the other provisions of the Agreement.
5.2 If the Owner materially revises the Project, a reasonable time extension and/or
credit shall be negotiated between the Facility Development Consultant and the
Owner.
5.3 Time is of the essence of this Agreement.
ARTICLE 6
OWNER'S RESPONSIBILITIES
6.1 The Owner shall provide full information regarding the requirements for the
Project.
6.2 The Owner shall examine documents submitted by the Facility Development
Consultant and shall render decisions pertaining thereto promptly, to avoid
unreasonable delay in the progress of the Facility Development Consultant's
Services.
6.3 The Owner shall furnish information and approvals required of it expeditiously,
for orderly progress of the Work and shall endeavor to adhere as closely as
possible with the time conditions for such Owner activities as set forth in all
approved schedules for the Project.
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ARTICLE 7
NOTICES
7.1 Any notice required by this Agreement or other communications to either party by
the other shall be in writing and deemed given when delivered personally or five
(5) days after deposit in the United States Post Office, postage prepaid certified
mail, return receipt requested, addressed as follows, or to such other address as
shall be duly given by notice meeting the requirement of this Article.
7.2 To Owner:
Mr. Fred Russell.
Augusta Richmond County Administrator
530 Greene Street, Room 801
Augusta, GA 30911
7.3 To Facility Development Consultant:
Mr. Tony Peterman
Partner
Strategic Advisory Group LLC
3848 St. Annes Ct.
Duluth, GA 30096
7.4 With Copy to Construction Program Manager:
Mr. Bob Munger, AlA
ARC Capital Improvements Program Manager
Heery International, Inc.
501 Greene Street; Suite 313
Augusta, GA 30901
ARTICLE 8
INSURANCE
8.1 The Facility Development Consultant shall purchase and maintain insurance for
protection from claims under worker's or workmen's compensation acts; claims
resulting from negligent acts or omissions for damages because of bodily injury,
including personal injury, sickness, disease or death of any of the Facility
Development Consultant's employees or any other person; claims for damages
because of injury to or destruction of personal property including loss of use
resulting there from; and claims arising out of the performance of this Agreement
and caused by negligent acts or omissions for which the Facility Development
Consultant is legally liable. Minimum limits of coverage shall be:
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INSURANCE DESCRIPTION
Minimum Required Coverage
a. Worker's Compensation
Statutory
b. Public Liability
Bodily Injury: Each Person
Bodily Injury: Each Accident
Property Damage: Each Accident
$1,000,000 Combined Limit
$100,000
$200,000
$100,000
c. Automobile Liability & Property Damage
Bodily Injury: Each Person
Bodily Injury: Each Accident
Property Damage: Each Accident
$1,000,000 Combined Limit
$100,000
$200,000
$100,000
ARTICLE 9
INDEMNIFICATION
9.1 Notwithstanding anything to the contrary contained herein, the Facility Development
Consultant shall indemnify and hold harmless the Owner, the Construction
Program Manager and their agents and employees from and against all claims,
damages, losses and expenses, including but not limited to attorney's fees, arising
out of or resulting from (i) the Facility Development Consultant's performance or
failure to perform its obligations under this Agreement and (ii) any claim,
damage, loss or expense attributable to bodily injury, sickness, disease or death,
or to injury to or destruction of personal property including the loss of use
resulting there from and caused in whole or in part by any negligent act or
omission of the Facility Development Consultant or anyone directly or indirectly
employed by the Facility Development Consultant. 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 herein.
9.2 Except as otherwise set forth in this Agreement, the Facility Development Consultant
and the Owner shall not be liable to each other for any delays in the performance
of their respective obligations and responsibilities under this Agreement which
arise from causes beyond their control and without their fault or negligence,
including but not limited to, any of the following events or occurrences: fire, flood,
earthquake, epidemic, atmospheric condition of unusual severity, war, state or
local government acting in its sovereign capacity, and strikes. Owner shall not be
liable to the Facility Development Consultant for acts or failures to act by
Construction Program Manager, the Contractor, or the Owner's consultants.
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ARTICLE 10
TERMINATION OF AGREEMENT
10.1 If (1), the Owner abandons the Project or the Project is stopped for more than six
(6) months due to actions taken by the Owner, or under an order of any court or
other public authority having jurisdiction, or as a result of an act of government,
such as a declaration of a national emergency making materials unavailable
through no act or fault of the Facility Development Consultant or its agents or
employees, or (2), the Owner has failed to substantially perform in accordance
with the provisions of this Agreement due to no fault of the Facility Development
Consultant and such non'performance continues without cure for a period of thirty
(30) days after the Owner receives from the Facility Development Consultant a
written notice of such nonperformance (including a detailed explanation of the
actions of the Owner required for cure), the Facility Development Consultant may,
upon fifteen (15) day's additional written notice to the Owner, terminate this
Agreement, without prejudice to any right or remedy otherwise available to the
Owner, and recover from the Owner payment for all services performed to the
date of the notice terminating this Agreement.
10.2 If the Facility Development Consultant persistently or repeatedly refuses or fails,
except in cases for which extension of time is provided, to supply sufficient
properly skilled staff or proper materials, or persistently disregards laws,
ordinances, rules, regulations or orders of any public authority jurisdiction, or
otherwise substantially violates or breaches any term or provision of this
Agreement, then the Owner may, without prejudice to any right or remedy
otherwise available to the Owner, and after giving the Facility Development
Consultant written notice, terminate this Agreement.
10.3 Upon termination of this Agreement by the Owner under Paragraph 10.2 or 10.3,
it shall be entitled to furnish or have furnished the Services to be performed
hereunder by the Facility Development Consultant by whatever method the
Owner may deem expedient. Also, in such cases, the Facility Development
Consultant shall not be entitled to receive any further payment until completion of
the Work; and the total compensation to the Facility Development Consultant
under this Agreement shall be the amount which is equitable under the
circumstances. If the Owner and the Facility Development Consultant are unable
to agree on the amount to be paid under the foregoing sentence, the Owner shall
fix an amount, if any, which it deems appropriate in consideration of all of the
circumstances surrounding such termination, and shall make payment
accordingly.
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10.4 The Owner may, upon thirty day's written notice to the Facility Development
Consultant terminate this Agreement, in whole or in part, at any time for the
convenience of the Owner, without prejudice to any right or remedy otherwise
available to the Owner. Upon receipt of such notice, the Facility Development
Consultant shall immediately discontinue all services affected unless such notice
directs otherwise. In the event of a termination for convenience of the Owner, the
Facility Development Consultant's sole and exclusive right and remedy is to be
paid for all work performed and to receive equitable adjustment for all work
performed through the date of termination. The Facility Development Consultant
shall not be entitled to be paid any amount as profit for unperformed services or
consideration for the termination of convenience by the Owner.
10.5 Should the Owner terminate the Facility Development Consultant as provided for
under this Article, the Owner will acquire such documents, including the
ownership and use of all drawings, plans, specifications, documents and materials
relating to the Project prepared by or in the possession of the Facility
Development Consultant. The Facility Development Consultant will turn over to
the Owner in a timely manner and in good unaltered condition all such original
documents and materials.
10.6 The payment of any sums by the Owner under this Article10 shall not constitute a
waiver of any claims for damages by the Owner for any breach of the Agreement
by the Facility Development Consultant.
ARTICLE 11
DISPUTE RESOLUTION
If a dispute arises out of or related to this Agreement, or its alleged breach, and if
that dispute has not been settled through direct discussions within a reasonable
period, the parties to this Agreement agree to first endeavor to settle the dispute
in an amicable manner by submitting the dispute to a mutually acceptable
mediator under the Construction Industry Mediation Rules, before having
recourse to a judicial forum. Each party further agrees that it will endeavor to
follow a similar dispute resolution procedure to resolve any disputes against any
third parties (including the Contractor and Construction Program Manager) which
arise out of or relate to work.
Should mediation of disputes prove unsuccessful, the parties to this Agreement
agree that the matter(s) in question will be decided in the Superior Court of
Richmond County, Georgia. By signing this Agreement, the Facility Development
Consultant waives any right to contest the venue in the Superior Court of
Richmond County, Georgia.
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ARTICLE 12
SUCCESSORS/ASSIGNMENT
12.1 This Agreement shall inure to the benefit of and be binding on the heirs,
successors, assigns, trustees and personal representatives of the Owner, as well as
the permitted assigns and trustees of the Facility Development Consultant.
12.2 The Facility Development Consultant shall not assign, sublet or transfer its
interest in this Agreement without the written consent of the other, except that
the Facility Development Consultant may assign accounts receivable to a
commercial bank or financial institution for securing loans, without prior approval
of the Owner.
ARTICLE 13
OWNERSHIP OF DOCUMENTS/CONFIDENTIAL INFORMATION
13.1 The Facility Development Consultant agrees to transmit a digital copy of all plans
and drawings to Owner prior to project closeout. Said electronic files and
documents are not to be used by the Owner on projects at separate facilities
without a written agreement with the Facility Development Consultant, except as
provided for under Paragraph 10.6.
13.2 In order for the Facility Development Consultant to fulfill this Agreement
effectively, it may be necessary or desirable for the Owner to disclose to the
Facility Development Consultant confidential and proprietary information and
trade secrets pertaining to the Owner's past, present and future activities. The
Facility Development Consultant hereby agrees to treat any and all information
gained by it as a result of the Services performed hereunder as strictly
confidential. The Facility Development Consultant further agrees that it will not
disclose to anyone outside of the authorized Project team (i) Owner's trade secrets
during the period of this Agreement or thereafter or (ii) Owner's confidential and
proprietary information during the period of this Agreement and thereafter for a
period of 2 years.
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ARTICLE 14
ADDITIONAL PROVISIONS
14.1 This Agreement and its Exhibits and Attachments represent the entire and
integrated agreement between the Owner and the Facility Development
Consultant and supersedes all prior negotiations, representations or agreements,
either written or oral. This Agreement may be amended only by written
instrument signed by both Owner and Facility Development Consultant.
14.2 Unless otherwise specified, this Agreement shall be governed by the law of the
State of Georgia, U.S.A.
14.3 If anyone or more of the provisions contained in this Agreement, for any reason,
are held to be invalid, illegal, or unenforceable in any respect, such invalidity,
illegality or unenforceability shall not affect any other provisions thereof and this
Agreement shall be construed as if such invalid, illegal or unenforceable provision
had never been contained herein.
14.4 Except where specifically stated otherwise, all periods of time stated in terms of
days shall be considered periods calculated in calendar days.
14.5 The headings or captions within this Agreement shall be deemed set forth in the
manner presented for the purposes of reference only and shall not control or
otherwise affect the information set forth therein or interpretation thereof.
14.6 For the purpose of this Agreement unless the context clearly indicates otherwise,
the singular includes the plural, and the plural includes the singular.
14.7 This Agreement may be executed in any number of counterparts, each of which
shall be deemed an original, and the counterparts shall constitute one and the
same instrument, which shall be sufficient evidence by anyone thereof.
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This Agreement executed the day and year first written above.
OWNER
FACILITY DEVELOPMENT CONSULTANT
Augusta, Georgia, a political
Strategic Advisory Group, LLC
Subdivision of the State of Georgia
a Georgia corporation
Acting by and through the Augusta
Richmond County Commission
~/O/ By {j~A ~
Z/! Deke S. Copenhaver
Mayor ~
Attes~ O1t1f1~
Clerk
By:
~
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Title
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Attest: ())Ii~ \. /
Witness
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