HomeMy WebLinkAboutSPLOST VI OUTSIDE AGENCY AGREEMENT BETWEEN AUGUSTA GA AND THE PAINE COLLEGE s
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STATE OF GEORGIA)
RICHMOND COUNTY)
SPLOST VI OUTSIDE AGENCY AGREEMENT
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This AGREEMENT made and entered into this � day of January, between
Augusta, Georgia, a political subdivision of the State of Georgia (hereinafter referred to as
"Augusta"), and The Paine College, (hereinafter referred to as the "Organization").
WITNESSETH
WHEREAS, the voters of Augusta, Georgia on June 16� 2009, approved the imposition
of the Special Purpose County One Percent Sales and Use Tax ("SPLOST VI"),) and designated
the use of the proceeds of said tax for certain capital outlay projects, as defined on O.C.G.A. 48-
8-11(a) and further approved a project priority payrnent order in an Intergovernmental
` Agreement entered into by and between Augusta, Georgia, and the municipalities of Hephzibah
and Blythe; and
WHEREAS, the Augusta Commission approved SPLOST funding for certain
recreational, historical and cultural improvement capital outlay projects to be implemented
through various outside agencies as provided in guidelines adopted on February l9 2009; and
WHEREAS, Augusta has determined that the project described on Exhibit A(the
"Project") is beneficial to the citizens of Augusta as it provides and enhances recreational,
historical and/or cultural resources in Augusta; and
WHEREAS, Augusta has determined that is more cost effective, avoids duplication of
services and is in the best interest of Augusta and the citizens of Augusta to contract with
Organization to undertake the Project, rather than Augusta directly constructing and operating
the proj ect; and
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WHEREAS, the Augusta desires to contract with the above named organization to
construct and operate the Project, which was a part of the approved capital outlay projects; and
WHEREAS, the sum of $2,500,000.00 from the proceeds of said tax (the "SPLOST
Funds") has been allocated to the Organization for the Project and Augusta has agreed to
advance the funds to the Organization to allow for the Project to begin.
NOW, THEREFORE, for and in consideration of the mutual covenants and agreements
between the parties, it is agreed as follows:
SECTION 1- APPROPRIATION AND USE OF FUNDS
1.1 Augusta agrees to appropriate the SPLOST Funds to be used by Organization on behalf
of Augusta for the purpose of constructing the Project as provided in Exhibit "A" hereto
attached and incorporated herein.
1.2 The Organization agrees to use such funds that it may receive, pursuant to this
Agreement, solely and exclusively for the construction of the above described Project;
said Project, including the Project Budget, is more specifically described in Exhibit "A".
1.3 Said disbursement to Organization is an authorized use of said proceeds, under O.C.G.A.
Section 48-111(e), as said use benefits a"cultural, recreational, or historical facility or a
combination of such purposes," and this Agreement is entered into on behalf of and for
the benefit of Augusta and Organization.
SECTION 2- RESPONSIBILITIES AND OBLIGATIONS OF ORGANIZATION
In consideration of the disbursement of the SPLOST Funds, Organization shall observe
all conditions that the law and/or this Agreement imposes on the use of said SPLOST
Funds, which shall include, but not be limited to the following:
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2.1 Organization shall use said proceeds only in connection with the capital outlay Project
and only for the purposes described in Exhibit A, which is attached hereto and made a
part hereof.
2.2 Organization covenants not to use any of said funds for any part of its maintenance and
operation budget, now or in the future.
2.3 Organization will set up any and all banking accounts necessary or convenient to
segregate the account containing SPLOST Funds from its other accounts. Organization
shall keep any SPLOST Funds that it receives from Augusta in a separate account fund
and shall not commingle Augusta distributions with other funds of the Organization prior
to their expenditure.
2.4 The Organization shall maintain a record of each and every expense, in compliance with
the generally accepted accounting principles, for which the proceeds of the tax are used.
The Organization shall submit quarterly accounting reports to Augusta for all funds that
the Organization receives from Augusta. Said accounting reports shall set forth the
amounts expended on the Project during the term of this contract, which, shall include
any amount expended on such Project in that current year, and the estimated percentage
of the completion of the Project. The initial report of expenditures regarding the Project
sha11 be made within 10 business days of the first installment of the SPLOST Funds being
made available to Organization as provided on E�ibit "B," and quarterly thereafter until
the end of the quarter in which the project is deemed completed as determined by the
Augusta Finance Department. Quarterly reports are due within ten (10) business days
following the end of each said quarter and shall be delivered to Augusta Finance
,
Deparhnent, 530 Greene Street, Augusta Georgia 30901 to the attention of Mr. Tim
Schroer, Assistant Finance Director.
2.5 Organization accepts the following conditions for disbursement of said funds:
A. Unless otherwise agreed by Augusta, no funds shall be made available to
Organization until such time as the tax has been collected as provided in the
disbursement schedule adopted in the Intergovernmental Agreement, and the
Organization has raised a minimum of twenty five (25%) percent of the SPLOST
Funds (the "Matching Funds"). Only cash or cash equivalents raised subsequent to
June 16, 2009 shall qualify as Matching Funds. Pledges, in-kind donations ar other
donations or contributions will not qualify as Matching Funds.
� B. Upon the Augusta executing an acknowledgement that the minimum ainount of
Matching Funds has been raised by the Organization, the Organization may expend
the Matching Funds on the Project, provided that the same recording keeping
requirements as provided in 2.4 are kept for expenditures of Matching Funds.
C. Prior to receipt of the SPLOST Funds or the expenditure of Matching Funds,
Organization shall furnish Augusta with a budget, scope of work and the projected
time for completion of the work on the Project, which must be approved by Augusta
prior to starting work on the Project. Disbursement of SPLOST Funds shall be
according the schedule attached here as E�ibit "B."
D. Organization shall comply with the purchasing policies of Augusta-Richmond
County regarding the advertising for bids, the securing of bids, and payment,
performance bonds and contracting. Payments to any sub-contractor employed by
the Organization shall be made directly by the Organization, subject to Augusta's
audit and approval. If the total project costs exceed the amount funded by Augusta
and the Matching Funds, the Organization shall provide proof of other funding
sources. Payments by the Organization to sub-contractors shall be made only upon
presentation of verified invoices.
E. Upon comptetion of the construction of the Project, Organization will lease the
Property to an entity designated by Augusta. Organization hereby acknowledges
and agrees that as the Project is to benefit the citizens of Augusta by providing and
enhancing the recreational, historical and/or cultural resources in Augusta, the
Project must be open to and available for public use. Provided however, this
section shall not preclude the Organization from charging reasonable and ordinary
fees for the use of the Project. � �
F. Simultaneously with the execution of the lease, Organization shall enter into a
operation and maintenance agreement for the operation of the Project.
G. Such Lease and Operating and Maintenance Agreement shall be in substantially the
same form as provided on E�iibit "C".
2.6 The Organization will maintain the following insurance during the performance of the
Contract:
A. Comprehensive General Liability Insurance shall be maintained in force at all times
and shall include the following coverages: Products/Completed Operations and
Automobile Liability Insurance in the combined single limits of $1,000,000. This
coverage shall be intended to apply as primary and shall not be affected by any
insurance that Augusta may carry in its own name. The Organization shall maintain
Workers Compensation and Employer's Liability Insurance for the benefit of its
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workers. The above requirements shall also apply to the Organization's contractors
and subcontractors who are engaged in the Project.
B. Prior to the commencement of work, the Organization will provide Augusta with a
certificate of insurance, which evidences the above coverage and names Augusta,
Georgia as an "additional insured."
SECTION 3- RESPONSIBILITIES AND OBLIGATIONS OF AUGUSTA
3.1 Augusta enters this contract to improve the quality of life of its citizens and to provide its
citizens with additional facilities for delivery of recreational, historical and cultural
services in a more cost effective manner than it could if it were to construct and operate
similar facilities without the participation of the Organization. Augusta shall have the
right, by and to this contract, for not less than 25 years of public use and availability of
the facility that is the subject of this contract. In the event that Organization desires to
sell or otherwise transfer title or ownership of the Project prior to the termination of the
Lease, then in such events, the transfer provisions of the Lease shall control.
3.2 Augusta and any auditors employed by Augusta shall have the right to verify and audit the
expenditures of the Organization and the Project, sufficient to determine that the monies
are being appropriately spent for the Project, in accordance with Georgia laws that govern
the expenditures of Special Purpose Local Option Sales Ta�c monies. Official
representatives of Augusta may inspect the official records of the Organization, which
relate to this project, at reasonable times and upon reasonable notice to the Organization.
Augusta shall also have the right to inspect the Project at any reasonable time for any
purpose related to the performance of any contract awarded, or to be bid upon or awarded,
by the Organization for this Project.
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SECTION 4- OBLIGATIONS OF THE ORGANIZATION AND COUNTY
4.1 Each of the parties hereto warrants and represents to the other that it will comply with all
the requirements of the laws of the State of Georgia.
4.2 After approval of this contract, all contracts between the Organization_ and any
subcontractor shall be submitted to Augusta Administrator for administrative review. If
any inegularity or illegality appears, the Administrator may submit any such questions to
the Augusta -Richmond County Commission.
4.3 This Agreement constitutes the entire agreement between the parties as to the matters
described herein and may not be amended except by a written instrument, signed by each
party's duly authorized officers.
� 4.4 Breach of contract with respect ta any of the terms of this Agreement, or with respect to
the use of funds, shall terminate Augusta's obligations under this Agreement; shall
terminate Augusta's obligation for the payment of any future funds; and shall entitle the
Parties to all remedies provided by law.
IN WITNESS WHEREOF, Augusta and Organization have caused these presents to be
executed by their respective, duly authorized officials, on the date entered above.
AUGUS , GEORGIA
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The Paine College - O tside Agency
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By:
Dr. George C. Br
Its: President
Attest:
Its:
EXHIBIT A
ORGANIZATION: Paine College
PROJECT (property to be leased): Health Education Athletics Learning Center, to be
located at 1255 Druid Park Avenue, Augusta, Georgia 30901
DESCRII'TION OF PROJECT/SCOPE OF WORK: construction of the Health
Education Athletics Learning Center. See attached project description.
PROJECTED TIME OF CONSTRUCTION:
COST OF PROJECT WORK:
Total Project Budget: $7,568,459.00
(see attached budget)
SOURCES OF FUNDNG:
SPLOST Funds: $ 2,500,000.00
Paine College Funds:
SPLOST Matching Funds: $ 625,000.00
Other sources $4,443,459.00
I Paine College will obtain a loan from Georgia Bank & Trust Company for approximately $6,943,459.00 for the
consiruction of the HEAL Center. T'he loan will include an amount equal to the SPLOST Funds. The loan balance
(but not accrued interest) will be reduced by the SPLOST funds when such funds become available.
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The �IEAL Compiex -- It's Essential
Paine Coilege has embarked upon an aggressive and bold campaign to buiid a
45,000 square foat liealth Education Activities Learning Complex (HEAL
Cornplex) on the historic campus. The HEAL Complex will be designed to ser-ve
the needs of the growing population of faculty, staff and students and will become
the first new construction on campus since 1973. The cornerstone of pride, the
HEAL Complex wili become the new hame for the Department of Athletics.
Having outgrown the current Randatl Carter Gymnasium, intercollegiate sports,
student athletes and coaches will return to a home cot�rt advantage in the new
2,400 seat arena.
Designed with classroams, Iaboratories and multi-puzpose rooms, the HEAL
Complex will support the faculty who Iive what they teach and have an
unparalleled cornmitment to shaping the young Ieaders of tomorraw. Under the
HEAL roof, faculty and students will engage in stimulating undergraduate research
while new academic programs will emerge to prepare studen#s for jobs that have
not yet been created, The HEAL framework will offer an infrastructure to pramote
accessible holistie wellness init'ratives to address heaith Iiteracy and health
disparities within the community.
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1 PAIN COLEEGE
2 HEALTH E DUCATIQ N ACTIVIT LEARNING { HEAL) CEN
3 BUDG£T
_ _. __.._ . ....__
4
6 � - ..... _
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7 WORK DEVi IiUDGET - --
_ --- --
8 1 Ge neral Conditi 389,896
9 2 Sitewark 1,111,519
10 3 Con crete --- --- 306,102 ----
11 4 Masonry -- 771,637 -
12 5 Meta! 443,482
13 6 Wood & Plastic 93,286 µ
14 7 Therrna & Plastics 330,644
�5 T 8 Door & Win@ 217,01
16 9 Finishes 487,229 .
17 10 Specia[ties 127,591 �.
f8 11 Eq uipment 13,001
19 12 Furnishin � � 191,665
20 13 Spec Construc Q � _
21 14 Conveying S p �
22 15 Mecha System 1,403,618
23 16 Etectrical 871,000 ��
24 Contractar F 450,752
25 Cantin ^ 3 60,022 � � -y-
26 - - -
27 - - -._ _ __.._ _
28 CATERGORY SUB TOTALS 7,568,459
EXHIBIT B
1. Organization shall evidence a deposit in its capital fund account the amount of
$625,000.00, for its matching funds (the "Matching Funds Amount"), all of which must
be verifiable as raised on or after June 16, 2009 (the "Matching Funds").
2. Prior to Augusta providing funding for the Project, Organization shall expend one
hu.ndred (100%) percent of the Matching Funds for construction of the Project and
provide the Finance Deparhnent evidence of the expenditure.
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LEASE AGREEMENT
This AGREEMENT, dated as of , by and between The Paine College
(hereinafter referred to as "Outside Agency"), a Georgia corporation, and
, (hereinafter referred to as "Organization");
WITNESSETH:
WHEREAS, the voters of Augusta, Georgia on June 16�` 2009, approved the imposition
of the Special Purpose County One Percent Sales and Use Tax ("SPLOST VI"), and designated
the use of the proceeds of said t� for certain capital outlay projects, as defined on O.C.G.A. 48-
8-11(a) and further approved a project priority payment order in an Intergovernmental
Agreement entered into by and between Augusta, Georgia, and the municipalities of Hephzibah
and Blythe; and
WHEREAS, the Augusta Commission approved SPLOST funding for certain
recreational, historical and cultural improvement capital outlay projects to be implemented
through various outside agencies as provided in guidelines adopted on February 19� 2009; and
WHEREAS, Augusta has determined that the Project, hereinafter described on Exhibit A, �
is beneficial to the citizens of Augusta as it provides and enhances recreational, historical and/ar
cultural resources in Augusta; and
WHEREAS, Augusta has determined that it is more cost effective, avoids duplication of
services and is in the best interest of Augusta and the citizens of Augusta to contract with
Outside Agency to undertake the Project, rather than Augusta constructing and operating the
project; and
WHEREAS, Outside Agency has completed the capital outlay project; and
WHEREAS, Outside Agency desires to lease to Organization and Organization desires to
lease from Outside Agency the Project for the benefit of the citizens of Organization; and
NOW, THEREFORE, for and in consideration of the mutual covenants and agreements
between the parkies, it is agreed as follows:
LEASE OF PREMISES. Outside Agency hereby leases to Organization and
Organization hereby leases from Outside Agency in consideration of the covenants and
agreements in this Agreement, the project that is more fully described on E�ibit "A" attached
hereto and by this reference made a part (the "Project").
TERM AND USE. The term of this Lease shall be for a period of Twenty Five (25} years
commencing on the "Acceptance Date"("Acceptance Date"), as such term is defined below,
unless sooner terminated as provided or permitted herein for purposes of this Lease, the term
"Lease Year" shall mean each consecutive 12-month period commencing on the Acceptance
Date.
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RENT AND ACCEPTANCE OF PROJECT. The rental during the Term shall be One
Dollar ($1.00) per year.
CONDITION OF PREMISES. Organization is accepting the Project in an"AS IS" condition,
subject only the wazranties and repair obligations contained herein.
DELIVERY AND ACCEPTANCE. Outside Agency agrees to deliver to Organization, and
Organization agrees to accept from Outside Agency, possession of the Project on or by
("Acceptance Date"). For purposes of this Agreement, the "Rent
Commencement Date" shall be the "Acceptance Date."
EXCLUSIVE USE COVENANT. Outside Agency covenants and agrees not to sell, lease, rent,
occupy or allow to be occupied, or otherwise transfer or convey all or any portion of the Project
without the advance written consent of Organization and Augusta, Georgia.
PROJECT REPAIRS AND MAINTENANCE. Repairs and maintenance of the Project are
addressed in a separate Operation and Maintenance Ageement entered into by and between the
parties.
INSURANCE. The parties agree that insurance on the Project sha11 be maintained as provided in
that separate Operation and Maintenance Agreement entered into by and between the parties.
INDEMNIFICATION. Each of the parties, to the extent allowed by law, sha11 defend, indemnify
and save harmless Outside Agency and its board members, officers, employees and agents from
all claims, costs, damages, judgments, expenses, fines, liabilities and losses (including
reasonable attorneys' fees, paralegal fees, expert witness fees, consultant fees, and other costs of
defense) arising from or as a result of (i) any accident, injury, including death, loss or damage of
any kind whatsoever caused to any person or to the property of any person as shall occur on the
Project during the Term caused by negligence or misconduct of the other party, its agents,
employees or contractors, or (ii) the other party's failure to perform its obligations under this
Lease. The obligations of this Section shall survive expiration or earlier termination of this
Lease.
TAXES. Any property taxes levied.against the Project will be paid as provided in the separate
Operation and Maintenance Agreement entered into by and between the parties.
ASSIGNMENT AND SUBLETTING. Organization may sublet or assign the Project upon prior
written consent from the Outside Agency. Following any subletting or assignment the
Organization shall be relieved from any of the terms and conditions of this Lease. After such
subletting or assignment, the word Organization as used herein shall mean any such sub-lessee or
assignee.
CONDITION OF PREMISES. Organization accepts the property in its "AS IS" condition.
DAMAGE TO PROJECT. If all or any portion of the Project shall be condemned by lawful
authority as unsafe or unfit for use, or if they become partially or wholly destroyed or damaged
by fire or other casua.lty such as to render them untenantable, Organization shall promptly notify
Outside Agency. Outside Agency shall apply all insurance proceeds and other funds as
necessary to rebuild, replace and repair, at Outside Agency's sole cost and expense, all damage
or destruction to the Project in good faith, and with promptness and diligence. Outside Agency
shall act to restore the Project to the same condition, as nearly as possible, as existed prior to
such casualty.
Regardless of circumstances, Outside Agency shall diligently pursue completion of all such
work. If Outside Agency fails or if, within thirty (30) days after the casualty Organization forms
the good faith belief that Outside Agency will be unable to complete its work and redeliver
exclusive possession of the Project to Organization in the required condition within such one
hundred eighty (180) day period, Organization may terminate this Lease without further liability
or obligation to Outside Agency. Should the Project be damaged but remain tenantable, Outside
Agency shall immediately repair the damage.
ALTERATIONS. Organization agrees not to make any structural alterations or additions to the
Project (except as otherwise provided in the Maintenance and Operation Agreement) without
first obtaining the Outside Agency's written consent, which consent shall not be unreasonably
withheid.
MECHANICS LIENS. Organization shall not allow, and Outside Agency shall not be
responsible for, any mechanics liens filed against the Project arising from work performed, or
materials supplied to the Project by Organization or Organization's agents, employees,
contractors, subcontractors or materialmen.
CONDEMNATION. In the event the Project is taken in Condemnation Proceedings,
Organization may cancel the Lease without further liability to Outside Agency. In the event any
part of the Project, including all or part of rights-of-way adjoining the Project, or approaches to
the Project, are taken in Condemnation Proceedings so that in the reasonable business judgment
of Organization the Project remaining would be unsatisfactory for Organization's business
operation, Organization may cancel this Lease or, at its option, retain that portion of the Project
not taken. In the event Organization retains the Project, Outside Agency will promptly and with
due diligence restore the remaining premises to proper tenantable condition. In the event that the
laws governing the Condemnation Proceedings provide separate compensation/benefits for
lessees, Organization shall be entitled to such compensation and/or benefits provided that it does
not diminish any award or right to which Outside Agency is entitled. For purposes of this Lease,
the term "Condemnation Proceedings" shall mean a governmental taking of all or any part of the
Project, and shall include conveyances and grants made in anticipation of or in lieu of
Condemnation Proceedings.
ORGANIZATION' S DEFAULT. If Organization defaults in the performance of any obligation
under this Lease, Outside Agency shall give notice to Organization specifying the nature of the
default.
If Organization does not, within thirty (30) days after receipt of the notice, cure the default, or, if
the default is of a nature that it cannot reasonably be cured within a period of thirty (30) days,
and Organization does not commence the cure within the thirty (30) day period and proceed
thereafter with reasonable diligence and in good faith to cure the default, then after the expiration
of the thirty (30) day period Outside Agency shall have the right to pursue its legal remedies.
If Organization does not, within fifteen (15) days after receipt of the notice, cure a default in the
payment of rent or other charges properly due to Outside Agency, then after the expiration of the
fifteen (15) day period Outside Agency shall give a second notice to Organization; and if
Organization does not, within five (5) days after receipt of the second notice, cure the default,
then after the expiration of the second five (5) day period Outside Agency shall have the right to
pursue its legal remedies.
OUTSIDE AGENCY'S DEFAULT. If Outside Agency shall be in default hereunder,
Organization, after thirty (30) days notice that Organization intends to cure the default (or
without notice if in Organization's reasonable judgment an emergency shall exist), Organization
shall have the right, but not the obligation, to cure the default, and Outside Agency shall pay to
Organization upon demand the cost thereof within ten (10) days. If Outside Agency does not
make such payments to Organization within ten (10) days, Organization may offset the amount
due from Outside Agency against any payments for rent or other payrnents due Outside Agency,
if any, and pursue its legal remedies. Except when in Organization's reasonable judgment an
emergency shall exist, Organization shall not commence to cure any default of a nature that
could not reasonably be cured within a period of thirty (30) days, provided Outside Agency shall
have commenced to cure the default within the cure period and so long as Outside Agency
proceeds with reasonable diligence and in good faith to cure the default.
MUTUAL WAIVER OF SUBROGATION RIGHTS. Outside Agency and Organization and ali
parties claiming under them mutually waive, release and discharge each other from all rigTlts of
recovery, causes of action,, claims and liabilities arising from or caused by any cause, casualty ar
hazard covered or required hereunder to be covered in whole or in part by insurance on the
Project or in connection with property on or activities conducted on the Project, and waive any
right of subrogation which might otherwise exist in or accrue to any person on account thereof.
The foregoing waiver shall apply regardless of the cause or origin of the claim, including but not
limited to, the negligence of a party or that party's agents, officers, employees or contractors.
Each party to the extent possible shall obtain, for each policy of insurance, provisions permitting
waiver of any claim against the other party for loss or damage within the scope of the insurance
and each party to the extent permitted, for itself and its insurer, waives all such insured claims
against the other party.
QUIET POSSESSION. Outside Agency covenants that it will put Organization into complete
and exclusive possession of the Project, free from all orders, restrictions and notices of any
public or quasi-public authority, and that if Organization shall pay the rental and perform all the
covenants and provisions of this Lease to be performed by Organization, the Organization shall,
during the Term, freely, peaceably and quietly occupy and enjoy the full possession of the
Project, and the tenements and appurtenances thereto belonging, and the rights and privileges
granted without hindrance. In addition, Outside Agency agrees to indemnify, defend, and hold
Organization harmless from any and all claims seeking to prevent Organization from quiet and
complete possession of the Project. If at any time during the term demised the title of the
Outside Agency shall fail or for any reason it shall appear that Outside Agency is unable to make
this Lease for the term on the conditions set forth, the Organization shall, in addition to all
remedies available at law or in equity, have the right at Outside Agency's expense to correct any
default and offset such amount against rent, or terminate this Lease.
ORGANIZATION'S BUSINESS OPERATION: Outside Agency and Organization agree that
nothing in this Lease shall be conshued to imply that Organization is required to conduct its
business in any particular manner or for any specified number of hours per day or week, or to
limit the number of hours per day or week that Organization may operate in the Project, or as
creating an implied or expressed obligation upon Organization to continuously occupy or operate
a business in the Project.
SURRENDER OF PROJECT. Upon the expiration of this Lease and all renewals, Organization
shall peaceably surrender the Project to Outside Agency in the same condition in which they
were received from Outside Agency at the commencement of this Lease, except: (i) as altered as
permitted or required by this Lease or the Maintenance and Operation Agreement; (ii) for
repairs, replacements and maintenance required to be performed by Outside Agency; (iii) for
items covered by Outside Agency's insurance; and (iv) for ordinary wear and tear. This Section
shall not apply to cancellation or termination of this Lease pursuant to Section DAMAGE TO
PROJECT, or pursuant to Section CONDEMNATION, pursuant to which Organization shall
have no obiigation or liability to Outside Agency. Organi�ation shall remove its property from
the Premises within a reasonable time after the Lease expiration (not to exceed thirty (30) days),
without additional rent obligation.
OUTSIDE AGENCY'S CONSENTS AND APPROVALS. Whenever it is stated in this Lease
that Outside Agency's consent or approval is required, Outside Agency agrees that such consent
or approval will not be unreasonably withheld or delayed. If, in any instance, Outside Agency
refuses to grant its consent ar approval, Outside Agency agrees to simultaneously give
Organization written notice of the reason(s) far such refusal. If Outside Agency's consent or
approval is not given or refused within ten (10) days after Organization's written request
therefore, such consent or approval shall be deemed automatically granted.
ATTORNEYS' FEES. If either party commences an action against the other party arising out of
or in connection with this Lease, the prevailing party shall be entitled to have and recover from
the losing party reasonable attorneys' fees and costs of suit, including, but not limited to, fees
and costs of appeal.
RECORDING. In the event either party desires to record the existence of this Lease, the parties
agree to execute a Memorandum of Lease setting forth the term, number of renewal option
periods and length, Organization's right of first xefusal, if any, the exclusive use covenant in
favor of Organization, the description of the Proj ect, and any other terms and conditions of the
Lease the parties wish to make of public record.
NO WAIVER. The failure of the Outside Agency or Organization to insist upon the strict
performance of this Lease, or the failure of Outside Agency or Organization to exercise any
right, option or remedy contained in this Lease shall not be construed as a waiver for the future
of any such provision, right, option, or remedy, or as a waiver of any subsequent breach. No
provision of this Lease shall be deemed to have been waived unless such waiver shall be in
writing signed by the party to be charged.
NOTICES. All notices required under this Lease shall be given and deemed to have been
properly served if delivered in writing personally, by certified mail, by a nationally recognized
overnight carrier with signed proof of delivery, or via facsimile with proof of transmission to:
Outside Agency at:
The Paine College
1235 Fifteenth Street
Augusta, Georgia 30901
Attn: Dr. George C. Bradley
To Organization at:
Attention: Administrator
Room 801
530 Greene Street
Augusta, Georgia 30941
or such other place or places as either of them may designate in writing to the other from time to
time in accordance with �he provisions of this Section. Date of seivice of a notice served by mail
shall be the date on which such notice is received by the addressee. Date of service by any other
method shall be the date of receipt.
ESTOPPEL CERTIFICATES. Upon the reasonable request of either party, Outside Agency and
Organization agree to execute and deliver to the other within ten (10) business days after receipt
of the request, a written instrument, (a) certifying that this Lease has not been modified and is in
full force and effect or, if there has been a modification of this Lease, that this Lease is in full
force and effect as modified, stating such modifications; (b) stating that the fixed monthly rent
has not been paid more than thirty (30) days in advance, or if so, the date to which it has been
paid; (c) stating whether or not, to the knowledge of the party executing the instrument, the other
party hereto is in default and, if the party is in default, stating the nature of the default; and (d)
stating the date of this Lease.
SUBORDINATION, NON-DISTURBANCE AND ATTORNMENT. Unless otherwise agreed
to by Organization, this Lease shall not be subject and subordinate to any first mortgage or deed
of fizst hereafter placed upon the Project.
ORGANIZATION PROPERT'Y. All Organization's personal property, furniture, furnishings,
signs, equipment, machinery, trade fixtures and trade uses located at the Project shall remain the
property of Organization and may be removed from the Project at any time. Outside Agency
shall have no lien or other interest whatsoever in any such items and within ten (10) days
following Organization's request, Outside Agency shall execute documents in reasonable form to
evidence Outside Agency's waiver of any right, title, lien, or interest in or to same.
SALE OR TRANSFER OF PROJECT. In the event that this Lease is terminated prior to the
expiration of the term of the Lease or if Owner of the Project shall sell, transfer or otherwise
dispose of the Project during the term of this Lease, then in such event the Owner shall reimburse
Augusta, Georgia an amount equal to the fraction determined by the number of years remaining
on the Lea.se with the remaining years as the numerator and the total number of years of the
Lease as the denominator multiplied by $2,500,000.00. (Example: if the Project is sold at the
end of year 10, 15 years would remain on the Lease. 15/25 =.6 x$250,000,000 =$1,500,000.
$1,500,000 would be reimbursed to Augusta, Georgia).
INVALIDITY OF CERTAIN PROVISIONS. If any provisions of this Lease shall be invalid or
unenforceable, the remainder of the provisions of this Lease shall not be affected and every other
provision of this Lease shall be enforceable to the fullest extent permitted by law.
FORCE MAJEURE. If either party shall be prevented or delayed from punctually performing
any obligation or satisfying any condition under this Lease by: (a) any strike, lockout, or labor
dispute not caused by the negligence non-performing party or breach of a labor contract by the
non-perfornung party; (b) the inability to obtain labor or materials not resulting in any way from
the negligence or any act or omission of the non-performing party; (c) and Act of God; (d)
governmental restrictions; regulations or controls not existing as of the date of this Lease; (e),
enemy or hostile governmental action; ( fl civil coinmotion, insurrection, sabotage, fire or other.
casualty not resulting from the non-performing party's negligence or other actions; or, (�) any
other condition beyond the reasonable control of the responsible party, then the time to perForm
the obligation or satisfy the condition shall be extended for a period of time equal in length to the
length of the event.
GOVERNING LAW. This Lease shall be construed in accordance with the laws of the State of
Georgia. Any legal action or proceeding with respect to this Lease shall be brought in the
Superior Court of Richmond County. By execution and delivery each party hereto accepts for
itself and in respect of its property, generally and the jurisdiction of the above-reference court.
CAPTIONS. All captions and headings are for convenience of reference only and in no way
shall be used to construe or modify the provisions set forth in this Lease.
ENTIRE AGREEMENT. This instruxnent its attachments, any duly executed amendments, the
documents incorporated into the Lease by reference, and any written agreements which are duly
executed pursuant to the terms and provisions of this Lease, if any, contain the entire agreement
between the parties and there are no covenants, express or implied except as contained herein.
No statement, promise or inducement made by either party or agent of either party that is not
contained in this written agreement shall be valid or binding. No waiver of any condition or
covenant of this Lease by either party shall be deemed to imply or constitute a further waiver of
the same or any other condition or covenant of the Lease.
BINDING EFFECT. This Lease, as of the Effective Date, shall bind and inure to the benefit of
the parties hereto, their heirs, successors, executors, administrators, and assigns.
SPECIAL STIPULATIONS. None
IN WITNESS WHEREOF, the parties have executed this Lease in multiple counterparts, each of
original document, as of the day and year first above written.
a Georgia corporation
Organization
By:
Its: President
Date:
Attest:
Its:
(Seal)
� Paine College
Outside Agency
By:
Dr. George C. Bradley
Its: President
Date:
Attest:
Its:
(Seal)
EXHIBIT "A"
DESCRIPTION OF PROJECT
,
� �C �l'�J� � �
The HEAL Compiex — It's Essential
Paine College has embarked upon an aggressive and bold campaign to build a
45,000 square foot Health Education Activities Learn�ng Complex {HEAL
Cornplex) on the historic campus. The HEAL Complex will be designed to seive
the needs of the growing population of faculty, sfaff and students and will become
the first new construction on campus since i973, The cornerstone of pride, the
I�AL Complex will become the new hame for the Department of Athletics.
Having outgrown the current Randall Carter Gymnasium, intercollegiate sports,
student athletes and coaches will return to a home eourt advantage in the new
2,400 se�t arena.
Designed with ciassroams, laboratories and multi-puipose rooms, the HEAL
Cornplex will support the faculty who live what they teach and have an
unparalteIed commitment to shaping the young Ieaders of tomorrow. Under the
HEAL roof, faculty and students wiil engage in stimulating undergraduate research
while new academic programs wilt emerge to prepare studen#s for jobs that have
not yet bee� created. The HEAL framework will o�fer an infiastructure to promote
accessible holistic wellness ini�iatives to address heal�h Iiteracy and health
disparities within the community,
� �
EXHIBIT A
DESCRIPTION OF PREMISES
PROPERTY SITUATE, LYING AND BEING IN THE STATE OF GEORGIA, COUNTY OF RICHMOND AND
CITY OF AUGUSTA, AND BEING MORE PARTICULARY DESCRIBED AS FOLLOWS:
BEGTNNING AT A PO1NT AND A P.K. NAIL, LOCATED AT A POINT WHERE THE SOUTH RIGHTOF-
WAY OF McANALLY STREET INTERSECTS THE WEST RIGHT-OF-WAY LINE OF DRUID PARK
AVENUE; THENCE SOUTH 02 DEGREES 07 MINUTES 50 SECONDS WEST, FOR A DISTANCE OF 249.84
FEET TO A POINT BEING A# 4 REBAR; THENCE CONTINUING ALONG THE WEST RIGHT-OF-WAY
LINE OF DRUID PARK AVENUE SOUTH O1 DEGREES 08 MINUTES 25 SECONDS WEST FOR A
DISTANCE OF 50.05 FEET TO A POINT BEING A"MARK IN THE CONCRETE SIDEWALK"; THENCE
CONTINUING ALONG THE WEST RIGHT-OF-WAY LINE OF DRUID PARK AVENUE SOUTH 03
DEGREES 25 MINUTES 48 SECONDS WEST FOR A DISTANCE OF 289.'78 FEET TO A POINT; THENCE
NORTH 86 DEGREES 37 MINUTES 52 SECONDS WEST FOR A DISTANCE OF 235.87 FEET TO A POINT;
THENCE NORTH 39 DEGREES 50 MINUTE5 Ol SECONDS WEST FOR A DISTANCE OF 200.83 FEET TO A
POINT; THENCE NORTH 86 DEGREES 34 MINUTES 41 SECONDS WEST FOR A DISTANCE OF 120.31
FEET TO A POINT; THENCE SOUTH 03 DEGREES 23 MINUTES 11 SECONDS WEST FOR A DISTANCE
OF 607.31 FEET TO A POINT; THENCE NORTH 86 DEGREES 17 MINUTES 13 SECONDS WEST FOR A
DISTANCE OF 142.51 FEET TO A POINT LOCATED ON THE EAST RIGHT-OF-WAY LINE OF BEMAN
STREET; THENCE NORTH 03 DEGREES 42 MINUTES 47 SECONDS EAST ALONG THE EAST RIGHT-
OFWAY LINE OF BEMAN STREET FOR A DISTANCE 826.56 FEET TO A POINT; THENCE SOUTH 86
DEGREES 0 4 MINUTES 51 SECONDS EAST FOR A DISTANCE OF 43.80 FEET TO A.POINT; THENCE :
SOUTH 03 DEGREES 55 MINUTES 09 SECONDS WEST FOR A DISTANCE OF 7.9 1 FEET TO A POINT;
THENCE SOUTH 85 DEGREES 43 MINUTES 32 SECONDS EAST FOR A DISTANCE OF 16.08 FEET TO A
POINT; THENCE NORTH 03 DEGREES 55 MINUTES 09 SECONDS EAST FOR A DISTANCE OF 8.01 FEET
TO A POINT; THENCE SOUTH 86 DEGREES 08 MINUTES 09 SECONDS EAST FOR A DISTANCE OF 2430
FEET TO A POINT; THENCE NORTH 03 DEGREES 45 MINUTES 02 SECONDS EAST FOR A DISTANCE
OF 16.50 FEET TO A POINT; THENCE SOUTH 86 DEGREES 14 MINUTES 58 SECONDS EAST FOR A
DISTANCE OF 58.68 FEET TO A POINT; THENCE NORTH 03 DEGREES 55 MINUTES 09 SECONDS EAST
FOR A DISTANCE OF 37.23 FEET TO A POINT; THENCE NORTH 86 DEGREES 04 MINUTES 51 SECONDS
WEST FOR A DISTANCE OF 143.00 FEET TO A POINT LOCATED ON THE EAST RIGHT-OF-WAY LINE
OF BEMAN STREET; THENCE NORTH 03 DEGREES 42 MINUTES 4'7 SECONDS EAST ALONG THE EAST
RIGHT-OFWAY LINE OF BEMAN STREET FOR A DISTANCE OF 127.46 FEET TO A POINT WHERE THE
EAST RIGHT-OF-WAY LINE OF BEMAN STREET INTERSECTS THE SOUTH RIGHT-OF-WAY LINE OF
McANALLY STREET,.BEING AN "X" IN THE TOP OF A CONCRETE DRAINAGE STRUCTURE; THENCE
ALONG THE SOUTH RIGHT-OF-WAY LINE OF McANALLY STREET SOUTH 69 DEGREES 57 MINUTES
18 SECONDS EAST FOR A DISTANCE OF 168.77 FEET TO A POINT BEING A# 4 REBAR; THENCE
CONTINUING ALONG THE SOUTH RIGHT-OF-WAY LINE OF McANALLY STREET, NORTI� 0 2
DEGREES 11 MINUTES 44 SECONDS EAST FOR A DISTANCE OF 50.00 FEET TO A POINT BEING A 3 /4"
OPEN TOP PII'E; THENCE CONTINUING ALONG THE SOUTH RIGHTOF-WAY LINE OF McANALLY
STREET NORTH 70 DEGREES 09 MINLITES 53 SECONDS EAST FOR A DISTANCE OF 95.00 FEET TO A
POINT AND A# 4 REBAR; THENCE CONTINUING ALONG SAID RIGHT-OF-WAY SOUTH 8 7 DEGREES
1 3 MINUTES 2 1 SECONDS EAST FOR A DISTANCE OF 1 45.84 FEET TO A POINT BEING A 1 AND '/4"
OPEN TOP PIPE; THENCE CONTINUING ALONG SAID RIGHT-OF-WAY LINE SOUTH 8 6 DEGREES 5 4
MINVTES 2 4 SECONDS EAST FOR A DISTANCE OF 229.48 FEET TO A POIN'T AND THE POINT OF
BEGINNING.
SAID PROPERTY IS SHOWN ON THE ATTACHED PLAT PREPARED BY GEORGE L. GODMAN
AND ASSOCIATES, DATED: 11-21-2011 AND REVISED: 12-08-2011 AS PROJECT AREA
CONTAINING 8.9 2 ACRES, MORE OR LESS.
A-1
� �-- �, ��- �--
��
OPERATION AND MAINTENANCE AGREEMENT
BETWEEN
THE PAINE COLLEGE
AND
Dated as of
OPERATION AND MAINTENANCE AGREEMENT
This OPERATION AND MAINTENANCE AGREEMENT , dated as of
, 20_ by and between ("ORGANIZATION"), and THE PAINE
COLLEGE (PAINE");
WITNESSETH:
WHEREAS, the voters of Augusta, Georgia on June 16th 2009, approved the imposition
of the Special Purpose County One Percent Sales and Use Ta�c ("SPLOST VI"), and designated
the use of the proceeds of said tax for certain capital outlay projects, as defined on O.C.G.A. 48-
8-11(a) and further approved a project priority payment order in an Intergovernmental
Agreement entered into by and between Augusta, Georgia, and the municipalities of Hephzibah
and Biythe; and
WHEREAS, the Augusta Commission approved SPLOST funding for certain
recreational, historical and cultural improvement capital outlay projects to be implemented
through various outside agencies as provided in guidelines adopted on February 19th 2009; and
WHEREAS, Augusta has determined that the project described on Exhibit A(the
"Project") is beneficial to the citizens of Augusta as it provides and enhances recreational,
historical and/or cultural resources in Augusta; and
WHEREAS, Augusta has determined that is more cost efFective, avoids duplication of
services and is in the best interest of Augusta and the citizens of Augusta to contract with PAINE
to undertake the Project, rather than Augusta constructing and operating the project; and
WHEREAS, PAINE has completed the construction of the Project and leased the Project
to ORGANIZATION; and
WHEREAS, ORGANIZATION has subleased the Project to Augusta, Georgia; and
WHEREAS, Augusta has contracted with ORGANIZATION to operate and maintain the
Project subject to the right of ORGANIZATION to contract with a third party to operate and
maintain the Project; and
WHEREAS, ORGANIZATION desires to contract with PAINE to operate and maintain
the Project and PAINE agrees to operate and maintain the Project; and
WHEREAS, ORGANIZATION and PAINE desire to set down their agreement in
writing.
NOW, THEREFORE, for and in consideration of the mutual covenants and agreements
between the parties, it is agreed as follows:
SECTION I
DEFINITIONS AND OTHER PROVISIONS OF GENERAL APPLICATION
Section 1.01 Definitions.
Certain words and terms used in this Operation and Maintenance Agreement ("O & M
AGREEMENT"') are defined herein. When used herein, such words and terms shall have the
meanings given to them by the language employed in this Article I defining such words and
terms, unless the context clearly indicates otherwise. In addition to the words and terms defined
elsewhere herein, the following words and terms are defined terms under this Operating and
Maintenance Agreement:
"Agreements" means the Lease Agreement between Paine and Organization dated . the
SPLOST VI Outside Agency Agreement, the Sub-Lease Agreement between Augusta and
Organization dated , the Operation and Maintenance Agreement between Augusta,
Georgia and Organization dated and this O& M Agreement.
"Augusta" shall mean Augusta, Georgia, a political subdivision of the State of Georgia.
`Building" means the Health Education Athletics Learning Center (the "HEAL Center") located
at 1255 Druid Park Avenuve, Augusta, Georgia 30901 and includes all improvements,
expansions and fixtures that encompass said building and those certain buildings and all other
facilities and improvements constituting part of the HEAL Center, which are or will be located
on the Premises, and more fully described on E�ibit "A".
"Event of Default" means any event specified in Section IX of this O& M AGREEMENT.
"Organiza.tion" means
"Paine" means The Paine College or any successor college or university by consolidation or
merger.
"Permitted Uses" means those normal and customary activities associated or carried on or about
cultural/academic/health/athletic facilities serving colleges and the communities in which such
facilities are located.
"Person" means natural persons, firms, joint ventures, associations, limited liability companies,
trusts, partnerships, corporations, and public bodies.
"Premises" means the Building and associated buildings, sheds, facilities, parking areas,
grounds, fixtures and equipment of a capital nature located thereon, and any common areas
located at 1255 Druid Park Avenue, Augusta, Georgia 30901 and collectively known as the
HEAL Center.
"SPLOST contribution" means the $2,500,000.00 contributed by Augusta, Georgia to Paine
College from SPLOST VI collections for construction of the Building and Premises.
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"SPLOST �I Outside Agency Agreement" means the contract between Augusta, Georgia and
Paine College dated
Section 1.02 Construction of Certain Terms.
For all purposes of this O& M AGREEMENT, except as otherwise expressly provided
or unless the context otherwise requires, the following rules of construction shall apply:
(1) The use of the masculine, feminine, or neuter gender is for convenience only and shall be
deemed and construed to include correlative words of the masculine, feminine, or neuter gender,
as appropriate.
(2) "This Agreement" means this instrument as originally executed ar as it may from time to
time be supplemented or amended by one or mare agreements hereto entered into pursuant to the
applicable provisions hereof.
(3) All references in this instrument to designated "Articles," "Sections," and other
subdivisions are to the designated Articles, Sections, and other subdivisions of this instrument.
The words "herein," "hereof," and "hereunder" and other words of similar import refer to this O
� & M AGREEMENT as a whole and not to any particular Article, Section, or other subdivision. �
(4) The terms defined in this Article shall have the meaning assigned to them in this Article
and include the plural as well as the singular.
(S) All accounting terms not otherwise defined herein have the meanings assigned to them in
accordance with generally accepted accounting principles as promulgated by the American
Institute of Certified Public Accountants, on and as of the date of this instrument.
Section 1.03 Titles and Headings
The table of contents, the titles of the articles, and the headings of the sections of this O
& M AGREEMENT are solely for convenience of reference, are not a part of this O& M
AGREEMENT, and shall not be deemed to affect the meaning, construction, or effect of any of
its provisions.
Section 1.04 General Provisions
(1) PAINE agrees to operate and maintain the Premises located at 1255 Druid Park Avenue,
Augusta, Georgia 30901.
(2) The Premises will be used to benefit AUGUSTA in providing cultural, historical and
recreational faciiities to its citizens. ("Permitted Purpose")
(3) Neither the Premises nor any part of the Premises will be used at any time during the
term of this Agreement for any purpose other than the Permitted Purpose.
-3-
ARTICLE II
REPRESENTATIONS AND UNDERTAKINGS
Section 2.01 Representations by PAINE. PAINE makes the following representations and
warranties as the basis for the undertakings on its part herein contained:
(a) Pending Litigation. There are no actions, suits, proceedings, inquiries, or
investigations pending or, to the knowledge of PAINE, after making due inquiry with respect
thereto, threatened against or affecting PAINE in any court or by or before any governmental
authority or arbitration board or tribunal, which involve the possibility of materially and
adversely affecting the transactions contemplated by this O& M AGREEMENT or which, in
any way, would adversely affect the validity or enforceability of the Agreements, or any
agreement or instx to which PAINE is a party and which is used or contemplated for use in
the consummation of the transactions contemplated hereby or thereby, nor is PAINE aware of
any facts or circumstances presently existing that would form the basis for any such actions,
suits, or proceedings.
(b) Agreements Are Legal and Authorized. The execution and delivery by PAINE of
the Agreements and the compliance by PAINE with all of the provisions of each thereof (i) are
within the purposes, powers, and authority of PAINE, (ii) have been approved by PAINE and are
legal and will not conflict with or constitute on the part of PAINE a violation of or a breach of or
a default under any document, indenture, mortgage, security deed, pledge, note, lease, loan, or
installment agreement, contract, or other agreement or instrument to which PAINE is a party or
by which PAINE or its properties are otherwise subject or bound, or any license, judgment,
decree, law, statute, arder, writ, injunction, deinand, rule, or regulation of any court or
governmental agency or body having jurisdiction over PAINE or any of its activities or
properties, and (iii) have been duly authorized by all necessary action on the part of PAINE.
(c) No Defaults. PAINE is not in default or violation in any material respect under
the Act or under any organic document or other agreement or instrument to which it is a party or
by which it may be bound.
Section 2.02 Responsibilities and Obligations of PAINE
(a) PAINE shall operate for the benefit of AUGUSTA and its citizens and allow
general public access to the Premises, subject to such reasonable rules and regulations PAINE
may be deem necessary for the orderly use of the Premises. Nothing in this section shall
preclude PAINE from charging reasonable fees for the use of the Premises or for attendance at
any event held at the Premises.
(b) PAINE will pay, out of any fees charged, and without setoff, abatement or
deduction all charges and costs of operating, maintaining, repairing, replacing and insuring the
Building including any common areas or facilities and the carrying out of all obligations of
PAINE under this Agreement. In the event that the fees charged for the use of the Premises are
insufficient to the expenses described in this paragraph, PAINE will be responsible for any
-4-
deficiency. It is specifically agreed and understood that neither ORGANIZATION nor
AUGUSTA wiil have any financial responsibility for any of the costs of operating, maintaining,
repairing, replacing and insuring the Building or the Premises.
(c) Insurance. PAINE, at its sole cost and expense, sha11 provide insurance equal
or greater the following insurance requirements:
2.02(c)(1) General Liability Insurance. PAINE shall carry comprehensive general
liability insurance, including contractual liability, personal and bodily injury, and
property damage insurance, on the Building and Premise, with a combined single
limit in an amount sufficient to protect PAINE, ORGANIZATION and AUGUSTA,
but in no event will such insurance be in an amount less than a combined single limit
of $3,Q00,000 per occurrence. ORGANIZATION and AUGUSTA shall be named as
additional insureds under such insurance. PAINE shall provide ORGANIZATION
and AUGUSTA with a certificate of insurance evidencing such coverage no later
than thirty days prior to the effective date of the O& M AGREEMENT. PAINE' S
insurance shall contain a clause stating that there shall be no reduction, cancellation,
or non-renewal of coverage without giving ORGANIZATION and AUGUSTA thirty
(3�) days prior written notice. Such insurance shall also be endorsed to provide that
the insurance shall be primary to and not contributory to any similar insurance
carried by ORGANIZATION or AUGUSTA, and shall contain a� severability of
interest clause.
2.02(c�(21 Pro�erty Insurance. PAINE shall procure and keep in effect during the
Operating Term fire and extended coverage for the Building and Premises, including
rent loss or business interruption coverage for periods of no less than twelve (12)
months, written on an All-Risk Endorsement and Replacement Cost basis, with the
replacement cost value reasonably acceptable to ORGANIZATION and AUGUSTA.
Such policy shall name PAINE, ORGANIZATION and AUGUSTA as loss payee,
mortgagee, and additional insureds, as their interest may appear. PAINE shall
provide ORGANIZATION and AUGUSTA with a certificate of insurance
evidencing such coverage no later than thirty days prior to the commencement of the
Operating Term.
2.�c)(3) Operational Insurance. PAINE shall procure and maintain the following
insurance:
(a) Workers' Compensation and employer's liability insurance as may be required
under applicable laws covering all of its employees;
(b) Such other insurance and/or additional coverage in amounts as PAINE in its
reasonable judgment deems advisable for its protection against claims, liabilities and
losses arising out of or connected with its performance under this Agreement.
-5-
2.02(c)(4) Policies and Endorsements.
(c) Where permitted, all insurance provided under this Article shall be carried in the
name of PAINE, with additional insureds being ORGANIZATION and AUGUSTA,
the holder of any fee or leasehold interest in the Building or Premises, and the holder
of the security deeds covering the Building or Premises, if any; any losses hereunder
shall be payable to the parties as their respective interests may appear. PAINE shall
deliver certificates of insurance with respect to all policies so procured, including
existing, additional and renewal policies and, in the case of insurance about to expire,
shall deliver certificates of insurance with respect to the renewal policies not less
than ten (10) days prior to the respective dates of expiration.
(d)All policies of insurance provided under this Article shall, to the extent
obtainable, have attached thereto an endorsement that such policy shall not be
canceled or materially changed without at least thirty (30) days prior notice to
PAINE, ORGANIZATION and AUGUSTA.
Section 2.03 Benefits to Augusta.
(a) PAINE enters this contract acknowledging that AUGUSTA'S contribution of SPLOST
funds was made to improve the quality of life of its citizens and to provide its citizens with
additional faciiities for delivery of recreational, historical and cultural services. In consideration
of the contributions by AUGUSTA, PAINE agrees that AUGUSTA shall have the right, by and
to this contract, for not less than 25 years of public use and that PAINE will operate the Premises
with any understanding that public availability of the facility is required under the terms of this
� Agreement.
Section 2.04 Responsibilities and Obligations
(a.) Each of the parties hereto warrants and represents to the other that it will comply with all
the requirements of the laws of the State of Georgia.
(b) Breach of contract with respect to any of the terms of this Agreement, or with respect to
the availability of the Premise to the public, shall be grounds for termination of this Agreement
and shall obligate PAINE to refund to AUGUSTA all SPLOST funds contributed to the project.
ARTICLE III
REPAIRS AND MAINTENANCE
Section 3A1 Roof repairs. PAINE represents and warrants that during the term of this
Agreement it shall maintain the roof of the Premises in a weather-tight condition, at its sole cost
and expense, and shall perform all necessary maintenance, repair, and replacement as needed.
Section 3.02 Interior repairs. PAINE shall be responsible for all interior and exterior repairs to
the Premises, including but not limited to: maintaining all interior non-structural walls, ceilings,
-6-
doors, floor coverings, mechanical systems, store front glass and the general cleanliness of the
parking area including grassed and unpaved areas; repairing, re-striping, patching and repaving
of the parking lot, curbing, driveways and loading areas located at the Premises; maintaining the
foundation, floors, walls, all exterior utility lines and pipes to the point of entry into the Building;
maintaining all other structural portions of the Premises; and making any and all other necessary
or advisable repairs or replacements.
ARTICLE IV
INDEMNIFICATION
Section 4.01 Indemnification. PAINE shall defend, indemnify and save harmless
ORGANIZATION and AUGUSTA, their board members, officers, employees, Commissioners,
Mayor and agents from all claims, costs, damages, judgments, expenses, fines, liabilities and
losses (including reasonable attorneys' fees, paralegal fees, expert witness fees, consultant fees,
and other costs of defense) arising from or as a result of any accident, injury, including death,
loss or damage of any kind whatsoever caused to any person or to the property of any person as
shall occur on the Premises. The obligations of this Section shall survive expiration or earlier
termination of this Lease.
ARTICLE V
� UTILITIES
Section 5.01 Utilities. PAINE shall have the right to select the utility service providers, and
shall pay for all utilities used in the operation of the Premises.
ARTICLE VI
TERM OF AGREEMENT
Section 6.01 Term of Agreement. This Agreement shall become effective upon its delivery and
shall be in full force and effect until noon, 2037, subject to the provisions of this
O& M AGREEMENT pernutting earlier termination (including particularly Article VII hereo fl,
until such date but in no event shall the term of this O& M AGREEMENT exceed fifty (50)
years.
ARTICLE VII
ADDITIONAL COVENANTS
Section 7.01 No Warranty of Condition or Suitability.
NEITHER ORGANIZATION NOR AUGUSTA MAKE ANY WARRANTY, EITHER
EXPRESS OR IMPLIED, AS TO THE HABITABILITY, MERCHANTABILITY,
CONDITION, OR WORKMANSHIP OF ANY PART OF THE HEAL CENTER PROJECT OR
THAT IT WILL BE SUITABLE FOR THE ORGANIZATION'S PURPOSES OR NEEDS.
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ARTICLE VIII
ASSIGNMENT; COSTS; USE AND OCCUPATION
Section 8.01 No Assignment. This Agreement may not be sold, assigned, delegated, or
encumbered by PAINE without the advance written consent of ORGANIZATION and
AUGUSTA.
Section 8.02 Taxes. PAINE will pay all property t�es, income taxes, duties, levies and
assessments which are Ievied, rated, charged, imposed or assessed by any lawful taxing authority
(whether federal, state, district, municipal, school or otherwise) against the Premises.
Section 8.03 Use and Occupation.
L PAINE will use and occupy the Premises only for the Permitted Use and for no other
purpose.
2. PAINE will open the whole of the Premises for business with the public.
3. PAINE may charge reasonable and ordinary fees for use of the Premises and for
attendance at any event held at said Premises. �
4. PAINE covenants that PAINE will carry on and conduct its business in such a manner as
to comply with all statutes, bylaws, rules and regulations of any federal, municipal or other
competent authority.
ARTICLE IX
EVENTS OF DEFAULT AND REMEDIES
Section 9.01 Events of Default Defined
The following shall be "Events of Default" under this O& M AGREEMENT, and the
terms "Event of Default" or "Default" shall mean, whenever they aze used in this O& M
AGREEMENT, any one or more of the following events:
a. The failure of PAINE to make any necessary repairs to the Premises or failure to insure
the Premises or Building within thirty (30) days of PAINE's receipt of notice of an Event of
Default pursuant to this Section 9A1(a).
b. PAINE' S breach in any material respect of any representation or warranty contained in
the Agreements, including but not limited to making the Premises available to the general public.
c. PAINE'S failure in any material respect to observe, perform, or comply with any
covenant, conditions, or agreement in the Agreements.
d. The occurrence of an event of default under the Agreements.
e. The failure of PAINE to pay any operating or other costs in connection with or associated
with the operation of Building or Premises, whether or not the income from fees charged for the
use of the Building or Premises are sufficient to cover such costs.
-8-
Section 9.02 Remedies on Default
Whenever any Event of Default referred to in the above section hereof shall have
happened and be continuing for more than sixty (60) days, ORGANIZATION, in its discretion,
may exercise any one or more of the following remedies:
a. Terminate the Agreement and upon PAINE reimbursing AUGUSTA its SPLOST
contributions, waive any interest it may have in the Premises.
b. ORGANIZATION may from time to time take whatever action at law or in equity or under
the terms of this Agreement or the SPLOST VI Outside Agency Agreement, may appear
necessary or desirable to enforce performance and observation of any obligations, agreement, or
covenant of PAINE this Agreement or the SPLOST VI Outside Agency Agreement.
Section 9.03 No Remedy Exclusive
No remedy herein conferred upon or reserved to ORGANIZATION is intended to be exclusive
of any other available remedy or remedies, but each and every such remedy shall be cumulative
and shall be in addition to every other remedy given under this O& M AGREEMENT or now or
hereafter existing at law or in equity or by statute. No delay or omission to exercise any right or
power accruing upon any default shall impair any such right or power or shall be construed to be
a waiver thereaf, but any such right and power may be exercised from time to time and as often -
as may be deemed expedient. In order to entitle ORGANIZATION to exercise any remedy
reserved to it in this Article VIII, it shall not be necessary to give any notice, other than such
notice as may be herein expressly required.
Section 9.04 Waiver of Events of Default
ORGANIZATION may waive any Event of Default hereunder and its consequences. In case of
any such waiver, or in case any proceeding taken by ORGANIZATION on account of any such
Event of Default shall be discontinued or abandoned or determined adversely to PAINE then and
in every such case ORGANIZATION shall be restored to their former position and rights
hereunder, but no such waiver or rescission shall extend to or affect any subsequent or other
Event of Default or impair or exhaust any right, power, ar remedy consequent thereon.
ARTICLE X
MISCELLANEOUS
Section lO.OlNotices. All notices, certificates, and other communications provided for
hereunder shall be in writing and sent (a) by telecopy if the sender on the same day sends a
confirming copy of such notice by a recognized overnight delivery service (charges prepaid), or
(b) by registered or certified mail with return receipt requested (postage prepaid), or (c) by a
recognized overnight delivery service (with charges prepaid). Any such notice must be sent to
any party hereto at the following addresses or to such other address as any party hereto shall
have specified in writing to the other party:
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,
If to Organization: Organization
Address
City, State ZIP
Attention:
If to Paine: 'The Paine College
1235 Fifteenth Street
Augusta, Georgia 30901
Attn: Dr. George C. Bradley
Notices nnder this Section 9,01 will be deemed given only when actually received.
Section 10.42 Conshuction and Binding Effect. This Agreement constitutes the entire
agreement of the parties concerning the subject matter hereof and supersedes any prior
agreements with respect thereto. This Agreement shall inure to the benefit of and shall be
binding upon PAINE and ORGANIZATION, and their respective successors and assigns
subject, however, to the limitations contained herein.
Section 10.03 Severability. In the event any provision of this O& M AGREEMENT shall be
held invalid or unenforceable by any court of competent jurisdiction, such holding shall not
invalidate or render unenforceable any other provision hereof.
Section 10.04 Amendments, Changes, and Modifications. This Agreement may not be
amended, changed, modified, altered, or terminated, and the observance of any term hereof may
not be waived, except as agreed to by all parties in writing.
Section 10.05 Execution of 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.
Section 10.06 Law Governing Construction. This Agreement is prepared and entered into with
the intention that the law of the State of Georgia, exclusive of such state's rules governing choice -
of law, shall govern its construction, with venue being in the Superior Court of Richmond
County, Georgia.
Section 10.07. Immunity of Officials, Officers, and Employees of Organization and Augusta.
No recourse shall be had for the enforcement of any obligation, covenant, promise, or agreement
of ORGANIZATION or AUGUSTA contained in this O& M AGREEMENT or for any claim
based here on or otherwise in respect hereof against any member of a Governing Body, officer,
or employee, as such, in his individual capacity, past, present, or future, of ORGANIZATION or
AUGUSTA, or any successor body, whether by virtue of any constitutional provision, statute, or
rule of law, or by the enforcement of any assessment or penalty or otherwise.
IN WITNESS WHEREOF the parties have caused this instrument to be executed by its
duly authorized officers and its seal affixed, all as of the day and year first above written.
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Paine College
By: George C. Bradley
Its: President
Attest:
Its:
Organization
By:
Its:
Attest:
Its:
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EXHIBIT A
DESCRIPTION OF PREMISES
PROPERTY SITUATE, LYING AND BEING IN THE STATE OF GEORGIA, COUNTY OF RICHMOND AND
CITY OF AUGUSTA, AND BEING MORE PARTICULARY DESCRIBED AS FOLLOWS:
BEGINNING AT A POINT AND A P.K. NAIL, LOCATED AT A POINT WHERE THE SOUTH RIGHTOF-
WAY OF McANALLY STREET INTERSECTS THE VVEST RIGHT-OF-WAY LINE OF DRUID PARK
AVENUE; THENCE SOUTH 02 DEGREES 07 MINUTES 50 SECONDS WEST, FOR A DISTANCE OF 249.84
FEET TO A POINT BEING A# 4 REBAR; THENCE CONTINUING ALONG THE WEST RIGHT-OF-WAY
LINE OF DRUID PARK AVENUE SOUTH O1 DEGREES 08 MINUTES 25 SECONDS WEST FOR A
DISTANCE OF 50.05 FEET TO A POINT BEING A"MARK IN THE CONCRETE SIDEWALK"; THENCE
CONTINUING ALONG THE WEST RIGHT-OF-WAY LINE OF DRUID PARK AVENUE SOUTH 03
DEGREES 25 MINUTES 48 SECONDS WEST FOR A DISTANCE OF 289.78 FEET TO A POINT; THENCE
NORTH 86 DEGREES 37 MINLTTES 52 SECONDS WEST FOR A DISTANCE OF 235.87 FEET TO A POINT;
THENCE NORTH 39 DEGREES 50 MINUTES O1 SECONDS WEST FOR A DISTANCE OF 200.83 FEET TO A
POINT; THENCE NORTH 86 DEGREES 34 MINUTES 41 SECONDS WEST FOR A DISTANCE OF 12031
FEET TO A POINT; THENCE SOUTH 03 DEGREES 23 MINUTES 11 SECONDS WEST FOR A DISTANCE
OF 607.31 FEET TO A POINT; THENCE NORTH 86 DEGREES 17 MINUTES 13 SECONDS WEST FOR A
DISTANCE OF 142.51 FEET TO A POINT LOCATED ON THE EAST RIGHT-OF-WAY LINE OF BEMAN
STREET; TE�NCE NORTH 03 DEGREES 42 MINUTES 47 SECONDS EAST ALONG THE EAST RIGHT-
OFWAY LINE OF BEMAN STREET FOR A DISTANCE 826.56 FEET TO A POINT; THENCE SOUTH 86
DEGREES 0 4 MINUTES 51 SECONDS EAST FOR A DISTANCE OF 43.80 FEET TO A POINT; THENCE �
SOUTH 03 DEGREES 55 MINUTES 09 SECONDS WEST FOR A DISTANCE OF 79 1 FEET TO A POINT;
THENCE SOUTH 85 DEGREES 43 MINUTES 32 SECONDS EAST FOR A DISTANCE OF 16.08 FEET TO A
POINT; THENCE NORTH 03 DEGREES 55 MINUTES 09 SECONDS EAST FOR A DISTANCE OF 8.01 FEET
TO A POINT; THENCE SOUTH 86 DEGREES 08 MINUTES 09 SECONDS EAST FOR A DISTANCE OF 2430
FEET TO A POIN'T; THENCE NORTH 03 DEGREES 45 MINUTES 02 SECONDS EAST FOR A DISTANCE
OF 16.50 FEET TO A POINT; THENCE SOUTH 86 DEGREES 14 MINUTES 58 SECONDS EAST FOR A
DISTANCE OF 58.68 FEET TO A POINT; THENCE NORTH 03 DEGREES 55 MINUTES 09 SECONDS EAST
FOR A DISTANCE OF 37.23 FEET TO A POINT; THENCE NORTH 86 DEGREES 04 MINUTES 51 SECONDS
WEST FOR A DISTANCE OF 143.00 FEET TO A POINT LOCATED ON THE EAST RIGHT-OF-WAY LINE
OF BEMAN STREET; THENCE NORTH 03 DEGREES 42 MINUTES 47 SECONDS EAST ALONG THE EAST
RIGHT-OFWAY LINE OF BEMAN STREET FOR A DISTANCE OF 127.46 FEET TO A POIN'T WHERE THE
EAST RIGHT-OF-WAY LINE OF BEMAN STREET INTERSECTS THE SOUTH RIGHT-OF-WAY LINE OF
McANALLY STREET, BEING AN "X" IN THE TOP OF A CONCRETE DRAINAGE STRUCTURE; THENCE
ALONG THE SOUTH RIGHT-OF-WAY LINE OF McANALLY STREET SOUTH 69 DEGREES 57 MINUTES
18 SECONDS EAST FOR A DISTANCE OF 168.77 FEET TO A POINT BE1NG A# 4 REBAR; THENCE
CONTINUING ALONG THE SOUTH RIGHT-OF-WAY LINE OF McANALLY STREET, NORTH 0 2
DEGREES 11 MINUTES 44 SECONDS EAST FOR A DISTANCE OF 50.00 FEET TO A POINT BEING A 3 /4"
OPEN TOP PII'E; THENCE CONTINUING ALONG THE SOUTH RIGHTOF-WAY LINE OF McANALLY
STREET NORTH 70 DEGREES 09 MINUTES 53 SECONDS EAST FOR A DISTANC� OF 95.00 FEET TO A
POINT AND A# 4 REBAR; THENCE CONTINUING ALONG SAID RIGHT-OF-WAY SOUTH 8 7 DEGREES
1 3 MINUTES 2 1 SECONDS EAST FOR A DISTANCE OF 1 45.84 FEET TO A POINT BEING A 1 AND '/4"
OPEN TOP PIPE; THENCE CONTINUING ALONG SAID RIGHT-OF-WAY LINE SOUTH 8 6 DEGREES 5 4
MINUTES 2 4 SECONDS EAST FOR A DISTANCE OF 229.48 FEET TO A POINT AND THE POINT OF
BEGINNING.
SAID PROPERTY IS SHOWN ON THE ATTACHED PLAT PREPARED BY GEORGE L. GODMAN
AND ASSOCIATES, DATED: 11-21-2011 AND REVISED: 12-08-2011 AS PROJECT AREA
CONTAINING 8.9 2 ACRES, MORE OR LESS.
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