HomeMy WebLinkAboutAMENDED AND RESTATED PROFESSIONAL SERVICES AGREEMENT TO THE CONVENTION AND VISITORS BUREAU AGREEMENT STATE OF GEORGIA ) AMENDED AND RESTATED
PROFESSIONAL SERVICES AGREEMENT
COUNTY OF RICHMOND )
THIS PROFESSIONAL SERVICES AGREEMENT(this"Agreement")is made and entered into
effective this 8th day of January,2019 by and between Augusta, Georgia, a political subdivision of
the State of Georgia ("AUGUSTA") and the Augusta Convention and Visitors Bureau, Inc., a
Georgia non-profit corporation("CVB").
WHEREAS, AUGUSTA desires to stimulate economic growth in AUGUSTA and the
surrounding area by developing and promoting the benefits and advantages of AUGUSTA for
conventions, business meetings, trade shows, festivals, film and digital entertainment industry,
sporting events, family reunions, large and small gatherings, leisure visitors, and tourism related
activities (the "Services");
WHEREAS,CVB has been providing the Services designed to stimulate economic growth
in AUGUSTA pursuant to that certain Professional Services Contract, dated October 4, 2004, as
amended(the "Contract");
WHEREAS,AUGUSTA desires that CVB continue to be designated the exclusive provider
of the Services as hereinafter outlined for the benefit of AUGUSTA, and CVB so desires to be so
designated; and
WHEREAS,AUGUSTA and CVB desire to amend and restate the Contract as currently in
effect as hereinafter provided to promote their mutual interests.
Now THEREFORE, in consideration of the premises and of the benefits to be derived from
their mutual observance of the covenants contained herein, the parties hereto agree as follows:
Amended and Restated Professional Service Agreement 2
PROFESSIONAL SERVICES AGREEMENT
SECTION 1: TERM OF AGREEMENT.
(a) Initial Term. The initial term of this Agreement shall commence on January
1, 2019, regardless of date of execution, and, subject to the provisions of Section 6, hereinbelow,
terminate absolutely and without further obligation on the part of AUGUSTA on December 31,
2019 (the "Initial Term"), unless otherwise renewed as hereinafter provided.
(b) Option to Renew. Subject to the provisions of Section 6, upon the expiration
of the Initial Term, this Agreement shall be automatically renewed for up to fourteen (14)
additional 1-year terms (each an "Additional Term"), with each such renewal based on the same
terms and conditions as the Initial Term,unless positive action is taken by AUGUSTA to terminate
this Agreement pursuant to the provisions of Section 6, hereinbelow.
(c) Aggregate Term. The aggregate term of this Agreement includes the Initial
Term and any Additional Term (the "Term").
SECTION 2: SCOPE OF SERVICES. During the Term of this Agreement, AUGUSTA and CVB
agree that CVB shall be the exclusive provider of the following services to AUGUSTA:
(a) Development and implementation of comprehensive marketing programs to
advertise,promote and publicize the Augusta Convention Center and AUGUSTA as a destination
for conventions, trade shows, conferences, meetings, film and digital entertainment production,
sporting and other events in AUGUSTA and for visitation and activities in a manner that results
in a positive economic impact to AUGUSTA.
(b) Development and implementation of a marketing program directed to
decision-makers and individual travelers to promote additional business and leisure travel to
AUGUSTA through emphasis on the products and attractions AUGUSTA offers.
(c) Participation in activities related to the branding of AUGUSTA for the
purpose of local, national, and international identity, and coordination of such activities with
AUGUSTA.
Amended and Restated Professional Service Agreement .3
(d) Staffing and operation of AUGUSTA's official visitor information center and
maintenance therein of exhibit booths pertaining to AUGUSTA's rich history and culture.
(e) Development, creation and distribution of visitor information literature in
appropriate quantities and at specific locations, including, but not limited to, State of Georgia
welcome centers, regional visitor information centers, places of public accommodation, and
AUGUSTA's official visitor information center.
(f) Development and maintenance of a visitor information website and other
digital platforms which promote the benefits of AUGUSTA.
(g) Maintain membership and participate in appropriate tourism related agencies
and convention associations on behalf of AUGUSTA, including, but not limited to the Georgia
Department of Economic Development, the Georgia Society of Association Executives,
Destinations International, and the Association of Film Commissioners International.
(h) Coordination with appropriate AUGUSTA departments, local hotels,
restaurants and entertainment facilities to provide services to associations, organizations or groups
convening or holding meetings in AUGUSTA with the goal of providing an positive experiences
and future return visits to AUGUSTA.
(i) Operate as the official Film Commission for AUGUSTA and market,
promote, and support inquiries from film production, digital entertainment, and related endeavors.
(j) Perform all other duties provided elsewhere in this Agreement and such
further duties as AUGUSTA and the CVB shall from time to time agree.
SECTION 3: PAYMENT AND USE OF FUNDS. As consideration for professional services rendered
by CVB under this Agreement, AUGUSTA shall pay to CVB the following amounts with the
following stipulations:
(a) Hotel/Motel Excise Tax.Fifty percent(50%)of the total revenue collected by
AUGUSTA from the Excise Tax for Hotels, Motels, and other places of public accommodation,
Amended and Restated Professional Service Agreement 4
including but not limited to AirbnbTM and like-kind businesses, imposed under Article 4, § 2-2-27
of the AUGUSTA, GA Code (collectively, the "Hotel Tax").
(i) Payment. Payments of the Hotel Tax shall be made by AUGUSTA to
CVB on or before the 15th day of each month with the first payment due on or before January 15,
2019.
(ii) Tourism Grant and Tourism Product Development Programs. CVB
agrees to designate one third(1/3rd)of the funds received from the Hotel Tax to fund tourism grant
and tourism product development programs as hereinafter defined(the "Tourism Grant Program"
and"Tourism Product Development Program,"respectively).
(A) Tourism Grant Program. The Tourism Grant Program shall be
governed by a committee (the "Tourism Grant Committee") comprised of the following
individuals: 1.) the Mayor Pro-Tern of Augusta as an ex-officio voting member, who shall serve
for a term as provided in the Consolidation Act; 2.) the two (2) Augusta Commissioners then
serving on CVB's Board of Directors, who shall each serve a two (2) year term; and 3.) four (4)
members then serving on CVB's Board of Directors, including the Chairman and one (1)member
representing the hotel/motel industry, all of whom shall each serve a one (1) year term.
(1) Determination of Grant Recipients. The Tourism Grant
Committee shall determine grant recipients and the amount of the grant for each recipient on an
annual basis. To be eligible for a grant the applicant must: 1.) submit a timely application; 2.) be
organized as a not-for-profit under the Internal Revenue Code, and 3.) represent an ongoing,
sustainable business or activity including, but not limited to, an attraction, association,
organization, or a governmental or quasi-governmental entity, which is not strictly dependent on
the award of a grant hereunder for its sustainability.
(2) Use of Grant Funds. Grants awarded hereunder must be used
for marketing, capital and other qualified expenses directed toward stimulating economic growth
in AUGUSTA by increasing visitation from outside of AUGUSTA. Grants may not be used for
1.) payment of interest or the reduction of deficits or loans; 2.) projects restricted to private or
Amended and Restated Professional Service Agreement .5
exclusive participation, other than certain grand and pre-opening expenses; or 3.) Scholarships,
endowments or cash awards of any kind. Further, no qualified entity may serve as a fiscal agent
for a non-qualified entity.
(3) Disbursement of Grant Funds. Grant recipients must sign a
contract with the CVB detailing the use of the grant award. Disbursement of funds may occur
annually,or over a period of up to five(5)years,based on the nature of the grant and the recipient's
qualifications.
(4) Grant Audits. CVB shall engage a qualified, independent
accounting firm or,as appropriate,a qualified government auditor,to audit on an annual basis each
grant recipient's qualifications for receipt of the grant and utilization of grant funds.
(5) Grant Administration Costs. CVB shall retain fifteen percent
(15%) of each grant awarded under the Tourism Grant Program for covering the costs of
administration.
(B) Tourism Product Development Program. The Tourism Product
Development Program shall be governed by the "Tourism Product Development Committee"
which shall be comprised of the same members as the Tourism Grant Committee. The Tourism
Product Development Committee shall be authorized to use up to twenty-five percent(25%)of the
funds designated pursuant to Section 3(a)(ii) hereinabove for the purpose of developing new
tourism products and experiences designed to attract visitors to AUGUSTA.
(b) Mixed Drink Excise Tax. Seventeen percent (17%) of the total revenue
collected by AUGUSTA from: 1.)the excise tax on whiskey and wine imposed under Article 3, §
6-2-101 of the AUGUSTA, GA Code, and 2.) the excise tax collected on mixed drinks imposed
under Article 3, § 6-2-117 of the AUGUSTA, GA Code (collectively, the "Mixed Drink Tax").
Payments of the Mixed Drink Tax shall be made by AUGUSTA to CVB on or before the 15th day
of each month; provided however, the payments contemplated under this paragraph (b) shall not
commence until there is no longer any debt owed by AUGUSTA on the original and any
subsequent loan amounts borrowed by AUGUSTA to construct a parking garage in support of the
Amended and Restated Professional Service Agreement 6
new Georgia Cyber Innovation and Training Center, without taking into consideration any
additional loans by AUGUSTA for expansions or improvements to the original structure. The
parties agree that the$52,083.33 payment made by AUGUSTA to CVB in December of 2018 shall
be full and complete payment of the obligations of this paragraph for the calendar year 2018.
(c) Private Funds; Contracts With Other Political Subdivisions. In addition to the
funds provided for under this Agreement, CVB is permitted to receive funds from third parties,
including, but not limited to, contributions, in-kind donations, services from private sources, and
contracts for tourism promotional services with other political subdivisions.
(d) Title to any supplies, materials, equipment, or other personal property shall
remain with CVB until fully paid for by AUGUSTA.
SECTION 4: REPORTING. CVB shall furnish to AUGUSTA a quarterly report of its activities
and financial condition for each calendar quarter during the Term of this Agreement to allow
AUGUSTA to verify the proper use of payments made pursuant to this Agreement. Said reports
to be delivered to the Clerk of the Augusta Commission no later than thirty (30) days following
each calendar quarter to wit: on or before April 30, July 31, October 31, and January 31. The
President/CEO of the CVB also agrees to appear as needed before the Augusta Commission to
discuss the CVB and its programs.
SECTION 5: ACCOUNTING AND INSPECTION. CVB agrees to: 1.) expend funds during each
fiscal year in accordance with its fiscal budget, 2.) operate and maintain an accounting system in
accordance with professionally accepted accounting principles; 3.) provide annual audited
financial statements to AUGUSTA; and 4.) permit the inspection of its books and records by
authorized AUGUSTA officials.
SECTION 6: TERMINATION.
(a) Termination for Cause. If through any default of this Agreement, either party
shall fail to fulfill in a timely manner any of its obligations under this Agreement and the defaulting
party fails to cure such default within thirty (30) days of receipt of notice of default from the non-
Amended and Restated Professional Service Agreement 7
defaulting party, the non-defaulting party shall thereupon have the right to terminate this
Agreement by giving written notice to the non-defaulting of such termination.
(b) Termination without Cause. Notwithstanding paragraph (a), either party may
terminate this Agreement at any time without cause by giving at least six (6)months prior written
notice to the other party.
SECTION 7: DISPUTE RESOLUTION.The parties agree that prior to initiating litigation in a court
of law, they will in good faith try to resolve any dispute, claim or controversy arising out of or
relating to this Agreement by alternative dispute resolution, such as but not limited to mediation
and/or arbitration. Unless otherwise agreed upon by the parties, the costs of participating in
alternative dispute resolution will be borne equally between CVB and AUGUSTA. Each party
shall bear their own costs and attorneys' fees for any dispute, claim controversy or lawsuit arising
out of or relating to this agreement.
SECTION 8: MISCELLANEOUS.
(a) Independent Contractor. CVB is not a political subdivision, agency or
instrumentality of AUGUSTA or the State of Georgia, and the relationship of CVB to AUGUSTA
is that of independent contractor for all Services performed pursuant to this Agreement. CVB shall
have exclusive control of its operations hereunder, and the persons performing same, and shall be
solely responsible for the acts and omissions of its officers, agents, servants, employees,
contractors and subcontractors.Neither CVB nor its employees are considered to be employees of
AUGUSTA for any purpose, nor shall CVB or its employees be entitled to any benefits from
AUGUSTA. CVB shall be solely responsible for all matters relating to the payment of its
employees, compliance with withholding taxes, and all other regulations governing such matters.
(b) Equal Opportunity and Nondiscrimination. CVB shall not exclude any person
from employment at CVB on any grounds prohibited by state or federal law. Furthermore, CVB
agrees that no person shall be excluded from participation, be denied the benefits of, or be
otherwise subjected to discrimination in the performance of his or her employment activities at
CVB on any ground prohibited by state or federal law.
Amended and Restated Professional Service Agreement .8
(c) Insurance. During the Term of this Agreement, CVB shall maintain at its
expense comprehensive general liability and automobile insurance with liability limits in amounts
not less than $1,000,000 combined single limit of liability for bodily injury, including death, and
property damage in any one occurrence. CVB shall also maintain at its own expense workers'
compensation insurance covering CVB employees in accordance with the provisions of the
Georgia Workers' Compensation Act.
(d) Notice. Any notice, request, demand, statement or consent required or
permitted by this Agreement shall be deemed to have been completed if in writing and mailed by
first-class, registered, or certified mail,postage prepaid to the other party at the respective address
given hereinbelow.
To the CVB: To AUGUSTA:
Bennish Brown, President/CEO Administrator
Augusts Convention and Augusta, Georgia
Visitors Bureau, Inc. 535 Telfair Street
P.O. Box 1331 Suite 910
Augusta, Georgia 30903 Augusta, Georgia 30911
(e) Entire Agreement. This Agreement constitutes the entire agreement of the
parties hereto concerning the subject matter hereof, and supersedes and replaces any previous
understandings, commitments, or agreements whether oral or written.
(f) Interpretation. Whenever the singular number is used in this Agreement and
when required by the context, the same shall include the plural, and the masculine gender shall
include the feminine and neuter genders. Days, unless otherwise specified, shall be calendar days.
(g) Severability. If any part of this Agreement is held to be invalid or
unenforceable by any law,regulation or court decision, such holding will not affect the validity or
enforceability of any other part of this Agreement.
(h) Amendment. This Agreement may be altered, amended, changed or modified
as mutually agreed upon by and between AUGUSTA and the CVB, and such alterations,
Amended and Restated Professional Service Agreement 9
amendments, changes or modifications shall be incorporated into written amendments to this
Agreement.
(i) Governing Law. This Agreement shall be deemed to have been made in, and
be construed in accordance with, the laws of the State of Georgia, without giving effect to its
conflict of law principles.
(j) Approval Required. This Agreement is contingent upon and shall not become
effective or binding until formally approved by the AUGUSTA Commission and the Board of
Directors of the AUGUSTA Convention and Visitors Bureau, Inc.
(k) Assignment. The rights and obligations of CVB under this Agreement are
personal to CVB and may not be transferred or assigned, in whole or in part, without the prior
written consent of AUGUSTA.
(1) Public Access - Open Meetings. CVB shall provide reasonable public access
to all the CVB board and committee meetings, according to the Georgia Open Meetings Law, and
shall issue notices of meetings required by said Open Meetings Law.
(m) Public Access - Open Records. CVB recognizes its obligations to continue to
maintain open and public records as required by the Georgia Open Records Act and subject to any
exception enumerated therein.
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Amended and Restated Professional Service Agreement 10
IN WITNESS WHEREOF, AUGUSTA and CVB have caused this Agreement to be executed
in their respective names and their respective seals to be hereunto affixed by their duly authorized
representatives, effective as of the date first above written.
Signed, sealed and delivered in the AUGUSTA CONVENTION AND VISITORS
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