Category: Augusta Politics

In Defense of Jim Plunkett

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Augusta Attorney Jim Plunkett

May, 30, 2012

Augusta, GA

By Al Gray

Veteran Augusta attorney Jim Plunkett has found himself at the epicenter of the controversy over the City of Augusta’s TEE Center and Parking Deck contracts since January. Commissioners blasted him with suggestions that he be fired, questions about his ability and even hints that suspect his work. How did such a mild-mannered lawyer find himself in this mess? Does he deserve to be under fire? What caused the uproar?

There were so many questions the answers for which are not in the public domain and empathy from reading the morass of legal documents that existed before Mr. Plunkett was brought on board by Augusta as its outside counsel, that this writer decided to meet with him to explore these questions. Commissioner Wayne Guilfoyle graciously facilitated the meeting in mid-March, which occurred in the offices of the Shepard, Plunkett, Hamilton & Boudreaux, LLP firm to negotiate, draft, and have executed the documents for the new Trade Center and the associated parking decks.

The primary objective was to see where the City stands with regard to the unexecuted TEE Construction, Operating and Reciprocal Easement (CORE) agreement that the Augusta Commission authorized and directed Mayor Deke Copenhaver to execute in December 2009. The CORE agreement is a critical piece of the legal work, as it sets forth the basic terms of the partnership agreement between the City and TEE Center Manager, Augusta Riverfront, LLC. This CORE agreement is in the process of being finalized as the City elected to have as-built surveys done once construction is complete, rather than chance changes as the project was prosecuted. Mr. Plunkett explained that set-backs between the various parcels underlying the TEE center were a complication that he and the City sought to either avoid or handle in the final CORE agreement.

We discussed the challenges of having a smaller firm like Shepard Plunkett tasked with having to revise hundreds of pages of legalese on the various tracts under the TEE Center, parking deck, and particularly, the existing Conference Center. These legal agreements first arose with the initial conference center agreement in 1989 and were revised in 1998, with the expansion of the conference center at that time.

Whatever one’s position on the wisdom and viability of building the TEE Center, they should understand that Jim Plunkett was tasked with the unenviable tasks of cobbling together enforceable and defensible legal agreements in conformity with the myriad ownership arrangements, funding sources, and negotiations agreed to by the City Administrator. City counsel has little or no exposure to how existing agreements and construction contracts are being directed and coordinated while this legal work is being completed. Those things are the duties of the City Administrator and the city’s program manager, Heery International.

We activists at Augusta Today and CityStink.net appreciate the difficulty and complexity of the legal tasks. Too many harsh words and hinted accusations were made during the Reynolds Street Parking Deck controversy. There are plenty of valid criticisms of that project, but we hope to keep them focused on policy not personalities going forward.

Jim Plunkett has expressed the intention to work with the commissioners to draft as good of a document as possible for the City. As the TEE Center CORE, management, catering, and room block agreements move closer to commission consideration, we trust that getting access to the draft agreements with sufficient time to evaluate them will go far toward alleviating misunderstandings. Going forward it is our desire at Augusta Today and CityStink.net to provide helpful input into having effective operating controls implemented.

Thank you, Jim, for taking the time to meet and review many of the complications with the TEE Center project.***

Related Stories:
TEE Parking Deck Exclusive: Fred Wrestles, Augusta Gets Decked?

 

Exclusive: 1120 Florence Street, A Nightingale Singing Questions

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Wednesday, May 16, 2012
Augusta, GA
By Al Gray
Within the last three years the Housing Department of the City of Augusta has contracted for the construction of multiple new housing units throughout the city, most prominently in the Laney-Walker Community. Questions in the community, city, and area abound. Are taxpayer funds being used wisely? Are the funds being disbursed according to governing regulations? How do costs compare with similar new homes in the city or in Columbia County?

The question of whether the home building funds were dispersed properly within the terms of the governing contracts and regulations has been reviewed. Augusta Today contributor Dee Mathis submitted a Georgia Open Records Request Act on February 23, 2012 to the Augusta Richmond County Law Department requesting:

“Plans and Specifications for the two units built under contract with the City of Augusta at 1120 and 1122 Florence Street; Payments made under the contract for the construction of these units, including invoices, payroll registers, and any other documents substantiating the costs reimbursed or paid to the contractor.”

As background, it is noted that Dee Mathis has exhibited keen interests in the real estate developments and revitalization efforts in the Laney-Walker neighborhood, having previously appeared before the city commission in opposition to the Laney-Walker overlay zoning ordinance.
The housing constructed was a duplex of two stories built by designated Laney Walker contractor J&B Construction and Services, Inc. The contract for it was dated June 22, 2010 and it was completed before, October 2011, when the final payment was made by the City of Augusta. J&B Construction is a designated Development Partner for the City’s Laney Walker Bethlehem improvement district. There are other development partners who have similar contracts and this review is not intended to single out this contractor but to address the City’s performance in administering similar contracts.

On March 6, 2012, Ms. Mathis received a two page response from Kenneth Bray of the Augusta Law Department accompanied by 60 pages of documents. This report summarizes the key points of the resulting review and commentary.
The nature of the contract is that it provides for construction costs to be reimbursable up to a Not-to-Exceed (Maximum) Price.
The stated amount of the contract was stated in Article 1, Section A, paragraph 1 as, “an amount not to exceed $272,681.00 shall be expended ….. from NSP Program funds for construction costs related to the development of an affordable multi-family housing unit as part of the Florence Street Project.”

Then the contract states in Article II, Section A, paragraph 2: “The method of payment shall be on a reimbursement basis… For invoicing, J&B Construction and Services, Inc. will include documentation showing proof of payment in the form of a canceled check or check register and completed reimbursement form that includes the amount requested, amount remaining and specific line items that relate to contract Budget…”

Article V, Section F. states that, “Requests for payment shall be accompanied by proper documentation… For purposes of this section, proper documentation includes: “Reimbursement Request Form supplied by HCD, copies of invoices, receipts, other evidence of indebtedness, budget itemization and description of specific activities undertaken.”

Article V, Section H, states, “Unexpended funds shall be retained by Augusta.” This supports the nature of the contract as being cost reimbursable because had the contract been a Lump Sum, the full contract price payment would have precluded the existence of any unexpended funds.

Appendix B, Reporting Requirements, contains this statement: “Report will contain actual/estimated costs/date, issues and concerns.”

**Payments were made based upon the Maximum Price, instead of reimbursable costs.

The progress payments made against the contract were based upon the original estimate, plus 3 change orders, and less contingency allowances, resulting in a total contract adjustment of $1,874.28, so that the total contract payments were $270,806.74. **(View Final Payments Document Here.)
In response to Ms. Mathis’ Georgia Open Records Request Act inquiry, The Augusta Housing Department provided no billing support that evidenced that the billed costs were actual costs as defined by check stubs, check registers, paid vendor and subcontractor invoices, or payroll registers for contractor employee-performed work.

When this writer contacted Mr. Shawn Edwards, Neighborhood Stabilization Program Manager for the City of Augusta to inquire about the required billing support, he initially indicated that the City was only getting the reimbursement form from the contractor and was making payments based upon the agreed-upon contract price, contending that the contract price was the proper basis for payment, not reimbursable costs. A follow up request is in process for Augusta to provide the actual cost back-up it might possess. This report will be updated if contradictory data is provided.

**The Federal Department of Housing and Urban Development has already cited Augusta for deficiencies like those in evidence for 1120 Florence Street.

James D. McKay, Regional Inspector General for Audit, Atlanta Region, issued an audit report in 2010 which included the following: During the review, we identified two concerns regarding internal controls and entering obligations before contracts were fully executed.

The City did not have internal controls in place to perform continuous and routine monitoring of its obligation process to ensure that its obligations were processed as intended and were valid. We discussed this matter with the City during the review, and the City agreed to develop monitoring procedures.

The City entered its NSP1 obligations into the DRGR database in June 2010 for its LH25 set-aside activities. At that time, the obligations were not valid because the contracts for those obligations had not been signed by all parties. However, the City obtained the required signatures and fully executed the contracts in August 2010, ahead of the September 5, 2010, deadline. We discussed this matter with the City, and it agreed that its obligations were not valid until the contracts were fully signed and executed by all parties.

The failure to secure evidence of reimbursable costs, while paying out contracts based upon the maximum price, would appear to be a 1120 Florence Street manifestation of the first exception that HUD  noted.

The second failure is definitely found to exist with the 1120 Florence Street units, as the contract was signed in June, 2011, three months after the initial contract payment.
The Office of Management and Budget circulars governing the NSP1 funds include the following.

OMB Circular A-87, Cost Principles for State, Local and Indian Tribal Governments (05/10/2004) HTML or PDF (58 pages, 216 kb),

OMB Circular A-110, Uniform Administrative Requirements for Grants and Other Agreements with Institutions of Higher Education, Hospitals and Other Non-Profit Organizations (11/19/1993) (further amended 09/30/1999, Relocated to 2 CFR, Part 215

OMB Circular A-133, Audits of States, Local Governments and Non-Profit Organizations

There are indications that the reimbursable cost could be materially less than the maximum price in the estimate and adjusted contract price.

The contract pricing detail on page 4 shows a charge for a central air system with a 15 Standard Energy Efficiency Rating (SEER). The unit installed was observed to be a Nutone Model  NT4BD. This model is shown by the manufacturer as a 13 SEER Heat pump, capable of reaching a 14 SEER if paired with a variable speed air handler.  The cost differential between a 13 SEER and 15 SEER is significant, because of the rigorous ductwork, blower, and air handler upgrades to achieve the higher rating. Having the HVAC contractor invoice, as required by this contract, and inspection of the installed system would settle this question.

The paid-out contract price included a line item entitled “Administration.”  In the absence of clarification, “Administration” would be an indirect cost which would be covered by the 15% Overhead and Profit allocation against all of the direct cost in the estimate, meaning that inclusion as a marked-up direct cost overstates “costs.” The overage would be $13,800, according to page 2 of the price estimate. This single factor would be 5% of the total contract value.

Using prices from Lowes in comparison to the estimate provides a mixed picture. The estimate prices for bricks and blocks would be a savings, but the prices of wallboard, lumber, mortar mix, concrete, roofing felt, and access doors seem to indicate losses. (These are current prices and can only be used as points of reference, as the actual contractor costs would govern.)

The contract estimate shows the “cost” per square foot on page 6 to be $79.73, exclusive of land costs. Review of the real estate transfer shows the lot to have cost Augusta $12,000, taking the total square foot “cost” to $83.24. By comparison the sales prices of new homes in Grovetown, which include the developers overhead and profit on top of construction costs,  are in the $76 to $82 range. This would indicate as much as 10% savings could be had by complying with the reimbursable cost standards of Augusta’s contracts.

KEY QUESTIONS – Since there are dozens of similar Augusta contracts within the Laney Walker Bethlehem development project, wouldn’t the savings from enforcing the contracts as written save between 5% and 10% of construction costs? Wouldn’t the cost savings justify obtaining comprehensive, detailed costs? Based upon the $37,500,000 committed by the city to these developments the savings would range from $1,875,000 to $3,750,000.

Isn’t Augusta in danger of having to repay hundreds of thousands of dollars, if HUD finds the City out of compliance with its payment of the Neighborhood Stabilization Program contracts?

If Augusta’s contractor’s can save money by changing suppliers and methods, isn’t it worthwhile to help them do so under the cost reimbursable contracts?

More to come.

– Al Gray

Below are the pdf documents referenced in this story:



Dee Mathis 1120 Florence GORA Request1120 Florence Street NTE Price Estimate1120 Florence Street Contract1120 Florence Signature Page1120 Florence Final Payment1120 Florence Draw 1

Breaking: Commission Agrees to Hire Outside Auditing Firm

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Originally posted on CityStink
Wednesday, March 28, 2012
Augusta, GA
From CityStink.net Reports

Al M. Gray, President of Cost Recovery Works, Inc. contributed multidisciplinary review techniques in support of this article. Cost Recovery Works is no longer in business, as of December 31, 2020.

Augusta Commissioners voted 6-1 earlier this evening to hire an outside auditing firm to conduct the annual audit of city finances required under state law. For the past 13 years the contract has gone to the local accounting firm of Cherry, Bekaert and Holland. But now a Macon, GA based firm, Mauldin & Jenkins, will take a look at the city’s books. Some commissioners argued that a non-local firm would be more  independent and resistant to pressure from individual commissioners and local interests, and that it was good to rotate the contract among different firms instead of always giving it to the same local firm year after year.

The vote was not easy, though. It took 3 tries to get it passed. The first motion failed in a 4-4 tie. Then a second motion also failed in a 4-4 tie. Commissioner Joe Bowles says it was a “slap in the face” to local accounting firms to award the contract to an out of town firm. Commissioners were reminded that failure to choose an auditing firm could result in the city losing all state funding.

Then Commissioner Corey Johnson brought forth a 3rd motion near the end of the meeting at 7 pm. By this time Commissioners Alvin Mason and Matt Aitken had left the meeting. Commissioner J.R. Hatney was absent from today’s meeting. The third time was a charm and Commissioners passed Johnson’s substitute motion to award the auditing contract to Maulden Jenkins. This time the vote passed 6-1 with Grady Smith as the sole dissenting Commissioner.

It was a confusing display of political theater to say the least and we will have video up of the proceedings as soon as it becomes available. Stay tuned***

CS

Augusta’s Contract With Heery International Contains More Surprises

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Hear Ye, Heery is Here

More Overpriced Payees for the City?

Originally posted on CityStink
February 24, 2012
Augusta, GA
By Al Gray

The author, Al M. Gray, was President of Cost Recovery Works, Inc., a provider of Cost Avoidance and Cost Recovery for America’s leading companies, businesses and governments desiring Superior Returns. Cost Recovery Works is no longer in business, as of December 31, 2020.

In 2003 the City of Augusta did a wise thing in a very foolish way. The administration saw an enormous upswing in capital spending that it lacked the staff and expertise to plan, engineer, procure, manage and control. A large, growing, and respected Atlanta-based firm, Heery International, was selected to perform these functions. The strategy was sound.

The execution was horrible.

This blanket order was executed with 4% annual rate increases mandated. Despite the downturn in construction and the overall economy, in which labor, overhead and profit have tended to fall, the compounding of Heery’s rates continued unabated. The rates established for next year are up an incredible 48% over the initial rates. A Principle in Charge then was $162.16 an hour, this year one is $230.81 and next year it would be $240.04. A project manager then was $87.32. Now one is $124.28, rising to $129.25 next year. An administrative assistant went from $42.41 to $62.78 an hour.

The cumulative effects are stunning. In July 2010 the contract was extended to 2013. At the time, the contract price was raised from $7,082,355 to $10,317,906.

Amazingly, the total overhead and fee in RW Allen’s contract to build and equip the entire TEE Center is $1.8 million, while Heery’s program management fees will top $1.2 million. There is another $1.3 million slated for the Webster Detention Center Phase II. The Reynolds Street Parking Deck is a surprising $549,390.

A defense can be made that division of duties between the construction management firms and Heery reduced the costs of the former. That is a valid point. The difference in rates probably negates a lot of this advantage, however.

A fairly common approach is for the hourly rate for such services to be based upon some verifiable figure, usually the salary rate of the employee divided by 2080 (52 weeks, 40 hours per week) times a multiplier that is negotiated. 2.0 to 2.3 is a normal range. The Heery contract does not accomplish this. The rates were firmly set on an unknown basis back in 2003 and 2004. Augusta did not negotiate controls over composition of rates.

Beyond this, generally there is a firm division in setting rates that only people directly engaged in the project or on site are billed. Principals, Project Directors, and home office administrative assistants, all of whom appear on Augusta’s contract, are included within the markup applied to the directly-engaged employees. Augusta’s Heery contract allows these employees to be billed in addition to the marked-up billing rates of the direct employees.

Augusta is only permitted to audit the hours billed and the employee classification. Augusta is not allowed access to payroll records to ascertain accuracy of the rate billed or upon what basis the rate is determined. The language is blunt: “OWNER may only audit accounting records applicable to a cost-reimbursable type compensation.”

What this says is that the public can never know how community liaison Butch Gallop‘s Heery billing rate got to be a whopping $177.91 an hour billed, with the potential of being billed at the $240.04 an hour on the rate sheet for next year!

The contract is nearly always advertised as a joint venture between Dukes Edwards Dukes and Heery International. Indeed, Dukes Edwards Dukes principal Winfred Dukes appears on the billing rate sheet at $240.04 an hour in 2013, up from the initial $162.16 an hour. For the sake of clarity and honesty, Dukes bills only about 4 hours a month. He is one of several Heery executives who Augusta should never have allowed to be billed, in this writer’s humble opinion, since they are at supervision levels above the Senior Project Managers and directly-engaged staff on Augusta’s projects.

To summarize, the Heery contract has been on auto-pilot with compounding rates, unverifiable rate bases, and apparent inadequate division of direct labor versus overhead. The fault lies with Augusta, not its contractor, in this case as in all of the others recently reviewed. Augusta is profligate with taxpayer money, in this case by not revisiting a blanket order for services, electing to extend it untouched for years.

Who is Winfred Dukes? Well we found him under the Gold Dome in Atlanta.

Who knew Augusta had another State Representative in the Georgia House?
Mysterious bodies abound in Augusta’s contracts. So far there are two in the Heery contract.

Stay tuned, there is more to come, as the deciphering of Augusta’s contracting continues.
Much more.***

A.G.
Related Stories:
“Galloping” Away With Taxpayers’ Money

**View Heery Document Below

Heery

TEE Center Update: Did Fred Fix the Kitchen But Fail to Execute?

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The Convention Center Agreement Today

Fred and Barry’s Unexecuted Fix?

Friday, Feb. 24, 2012

Augusta, GA

by Al Gray

In TEE Center Kitchen Costs Leave Taxpayers Burnt! , yesterday’s City Stink exclusive, this writer covered deficiencies in the City of Augusta’s TEE Center Term Sheet with its partner in the project, Augusta Riverfront, LLC, which was approved by the City Commission on August 21, 2007. This was the approved document recently cited by attorney Jim Plunkett’s resolution recounting the history of Commission votes ratifying TEE and Parking Deck Agreements. A formal agreement was belatedly drafted and conditionally approved for the Reynolds Street Parking Deck on February 7.

Despite references in Board of Commissioner meetings all through 2009, no formal contractual agreement has been found executing the final TEE (now Conference Center) operating agreement. The original operating agreement for the Convention Center was recorded in the office of the Clerk of Superior Court. There doesn’t seem to have been any modification nor has there been any action to define rights with respect to the .23 acre tract that the LLC owns under the TEE Center. Like the parking deck agreements, the formal agreement seems to have lagged negotiations by years.

Based upon a schedule obtained in an earlier open records request by City Stink contributor Lori Davis (See Modifications Sheet Document Here) and informational updates made since the August 21, 2007 approval of the original term sheet that was unfavorable to Augusta, as noted yesterday, it looks like Augusta City Administrator Fred Russell and City Convention and Visitor’s Bureau Chief Barry White actually may have done an exceptional job of renegotiating the deal so that it is dramatically more favorable to the City!

The proposed modifications put the City in control of the Center’s finances, gives it catering revenues, provides for a set fee rather than profits from operations, and provides that profits from operations go to Augusta. If this modification represents the final agreement, it is vastly superior to the original deal and is actually a very good deal for the City of Augusta.

From here it looks like the original Term Sheet stands as the only basis of an operating agreement actually approved by the Commission and that the final agreement has been mired in what have to be tremendous legal complexities of merging the TEE agreement with the existing Convention Center Agreement.

The final agreement should take care of the issue of the new kitchen equipment and replacements of that equipment going forward, but the Issue of how the new agreement relieved the LLC’s responsibilities going into this transaction, up to and until the combined TEE Center starts operations, still stands as does the issue of LLC responsibility for the proposed HVAC changes demanded by the Marriott.

Leaving issues like these, which should have been finalized before construction, hanging for 4 ½ years is a huge failure of administration, despite Fred Russell’s accomplishment of what looks to be a much, much better deal.

This story will be updated as new developments are known.***

A.G.

Related Stories:

Exclusive: TEE Center Kitchen Costs Leave Taxpayers Burnt!

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!!CityStink.net Exclusive!!

And Now, The Tee Kitchen Saga

A cost recovery opinion and perspective



Wednesday, Feb. 22, 2012
Augusta, GA
by Al Gray

 

In a very heated Augusta Richmond County Commission meeting last evening, February 21, 2012, a proposed change order totaling $836,288 for modifications to the TEE Center Contract with RW Allen was disapproved. The substantial price increase was really the aggregate of 13 different change orders combined for the purpose of gaining Commission approval, usually a rubber stamp. This time the Commission balked because of a stench boiling out of the unfinished TEE/Convention Center Kitchen. $399,823 of the increase was an HVAC upgrade to the kitchen area at the insistence of the city’s partner in this public-private partnership, Augusta Riverfront, LLC, operator of the Marriott hotel.

Neither side of the vote on the Commission was wrong. Augusta’s entire project management team had signed off on the change order four months ago, so disapproving it now was a moot point. Some commissioners accurately saw it that way and voted for approval, yet they all have serious questions. The rest missed the point about construction contract law and jumped to the real issue – are the Augusta Riverfront partners in this project controlling and expanding the scope to their benefit, yet totally at public expense?

The change order is a “done deal.”  A war appears imminent between the partners over financial responsibility for various areas of the project.

There is a powerful ODOR coming from the kitchen.

The parties jumped into this agreement based upon a document entitled Management Agreement Term Sheet – Trade Center, Version 6 dated June 29, 2007, which the Commission approved on August 21, 2007. The purpose of the term sheet was to set forth that the “City of Augusta (“Augusta”) and Augusta Riverfront, LLC (“LLC”) are interested in entering into a joint venture to own, build and operate a Trade, Exhibit and Event Center (“Trade Center”).”

This controlling document failed to establish effective dates or define WHEN operations start and construction ends. It would appear to embrace start of operations before project completion because it requires the Convention and Visitors Bureau to expend City funds 18 months before the project is complete. Aside from this, the project itself was scheduled to accommodate ongoing operations.

Let’s see what the Term Sheet says about cost responsibility: “LLC has total responsibility to provide all operating cost of the Convention Center, including, but not limited to, labor cost, supply cost, insurance and all repair, maintenance, and replacement of equipment. These replacement costs include replacing kitchen equipment, laundry equipment, HVAC equipment, outside walls and roof.”

Then there is this section:

AUGUSTA AND LLC AGREE TO THE FOLLOWING TERMS TO OWN, BUILD AND OPERATE THE TRADE CENTER

5.  OPERATIONAL & CAPITAL FUNDING: It is anticipated that the new Trade Center’s rental revenues may not be sufficient to cover its operating expenses, particularly in the early years. The Trade Center will have capital needs for addition and replacement of various fixed assets. Augusta and LLC will participate in these Operational and Capital Funding needs as follows:

…

d. Augusta’s Capital Funds shall specifically not be used for items related to Kitchen Equipment, Laundry Equipment, and any Convention Center or Hotel capital cost.

Remember there are no dates given to establish when operations start because operations were ongoing and overlap construction activities. Even more confusing is what is “Convention Center” versus “TEE Center.” Indeed, by actions of Augusta Riverfront, LLC publicly acknowledging that BOTH are the “Convention Center” hasn’t that partner effectively agreed that its financial responsibilities for the combined total include those that previously existed for the Convention Center?

Interestingly, the Term Sheet provided that the kitchen for which Augusta Riverfront had equipment repair and replacement responsibilities would be consolidated with the TEE Center kitchen.

7. KITCHEN AND BACK-OF-HOUSE: LLC and Augusta will allow the necessary modifications to the Convention Center to provide for the combined use of the kitchen, laundry and back of the house areas. The modified kitchen and back of the house space will be designed for use for both the Convention Center and the Trade Center.

In so combining the “Convention Center” with the “TEE Center” did Augusta Riverfront’s existing financial responsibility for kitchen equipment disappear? Or did it carry over?

4. TERM OF AGREEMENT: Augusta and LLC agree to modify their agreement for the operation of the Convention Center to include the Trade Center.

The Term Sheet also clearly stated that catering revenues produced by the kitchen equipment do not result in any benefit for Augusta.

APPENDIX A: Definitions

For purposes of calculating the “Trade Center Operational Funding” described in Section 5., the Operating Revenues shall not include the following:…..

m. Trade Center Catering Revenues

2. Trade Center Catering Revenues: shall consist of those food and beverage revenues generated on formal, catered meal functions held in the Trade Center.

City Stink and Augusta Today contributor Lori Davis obtained the December 31, 2012 project billing from Construction Manager at Risk RW Allen to the city (See Document here: Attn to Kitchen Equipment Line Item Item 19 on Page 3). This billing includes a line item of $1,376,987 for Kitchen Equipment, $275,946 of which has already been billed and presumably paid, less the retainage. Examination of the supporting subcontractor invoice shows thousands of dollars to repair and clean existing equipment that would have apparently been the responsibility of the LLC under the previous agreement. The controversial HVAC change order to meet Marriott standards can be added to the total.

It is clear that the infrastructure and building costs for the kitchen are the responsibility of Augusta. These costs are included in the building mechanical, electrical, HVAC and other contracts. No potential issues are apparent there, other than cost issues that might be unearthed in the future by a construction auditor.

Adding the $1,376,987 of kitchen equipment to the Marriott-directed kitchen HVAC upgrade $399,083 means a total of $1,776,070 of kitchen equipment capital costs that are potentially disputable by the City of Augusta as costs to be born by Augusta Riverfront, LLC.

Questions abound. Has the City backcharged the LLC for any of the $275,946 paid to date for kitchen equipment and repair or cleaning of existing equipment the LLC seems responsible for? Isn’t the full $1,776,070 capital expenditures for which the LLC is responsible under the existing agreement and the Term Sheet?  Was an intent to treat the capital expenditures for new kitchen equipment as an Augusta cost adequately stated in the term sheet? Are the provisions for the LLC to be a partner in the project mean it can claim one start date for its project start date, yet another as the start date of ‘operations’ under the same agreement when no dates are stated in that agreement? Hasn’t the LLC by announcing that the whole is now the “Convention Center” legally shot itself in the foot by in doing so embracing responsibility for kitchen capital expenditures? How many other costs of the Tee Center construction supplant existing LLC responsibilities for operating and capital costs from the existing Convention Center agreements? Where are the backcharges to the LLC?

Summary

To summarize, the Term Sheet establishing the relationship between the City of Augusta and the LLC for the TEE Center Project seems to be flawed in terms of effective dates; makes repeated statements that capital costs of kitchen equipment, which cost more than $1.7 million, and other capital costs are LLC responsibility; combines the existing “Convention Center” agreement with provisions making the LLC responsible for kitchen equipment with the new TEE Center construction and operations; and excludes Augusta from any apparent benefit from use of this capital equipment.

Somebody has a grand mess in their kitchen. This writer would be hard-pressed to decipher financial responsibilities under this informal, rushed, and incomplete Term Sheet “agreement.”

The lawyers are salivating because dividing this baby is going to take more than the wisdom and judgment of Solomon. The opinion from this quarter would be that it could be split 50-50. Given the size of these costs, that won’t be an easy pill to swallow.

The Commission is, yet again, in an impossible position with respect to this project. Can they get any more Tee’d off?

Stay tuned for more cost recovery analysis  as the TEE Center documents are dissected while the project nears completion.***

 Al Gray

Editor’s note: City Stink contributor Al Gray is President of Cost Recovery Works, Inc., a Lincoln County, Georgia-based firm focused on construction, public administration, policy and cost recovery reviews on a guaranteed results basis. Cost Recovery Works is no longer in business, as of December 31, 2020.

Related Stories:
TEE Update: Did Fred Fix the Kitchen But Fail to Execute?

** Below are pdf files of the documents referenced in the above article:

RWA December 2011 Pay App
TEE Term Sheet (1)

Al Gray: TEE Center GMP Construction Contract Provides No “Guarantees”

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When A Guarantee Isn’t One

Originally posted on CityStink
Tuesday, Feb. 21, 2012
Augusta, GA
By Al Gray

The author, Al M. Gray, was President of Cost Recovery Works, Inc., a provider of Cost Avoidance and Cost Recovery for America’s leading companies, businesses and governments desiring Superior Returns. Cost Recovery Works is no longer in business, as of December 31, 2020.

Augusta Commissioners on February 21, 2012, today, face a thorny vote on whether to approve a very expensive Change Order to R.W. Allen, LLC’s Construction Manager at Risk Contract for construction of the TEE Center. The contract is structured as a cost-plus arrangement with a Guaranteed Maximum Price. Such deals are commonly called GMAX or GMP contracts.

Under a cost-plus GMP contract, the construction manager starts construction before the design and specifications are complete in an effort to accelerate project completion. Otherwise all of the design, specifications and plans must be complete in order to bid the job on a lump sum or fixed price basis. Under a GMP contract, the construction manager mobilizes, awards the early sitework, underground piping, and preliminary concrete work while the architects and engineers complete packages for the various construction disciplines (steel, electrical, HVAC) that occur in later stages. When the overall design reaches majority completion, in this case 65%, the construction manager has enough data to provide the owner with a Guaranteed Maximum Price.

RW Allen and Augusta agreed to a GMP of $27,900,000 in January 2011.

The public highly distrusts cost-plus contracts, even those capped by a maximum price “Guarantee.” In this instance, properly done, cost-plus should have saved money and been the best choice method of project delivery. RW Allen had to deal with a brownfield site (unknown underground obstacles and conditions), coordination with ongoing operations of the hotel and convention center, in a congested area, and in conjunction with new design. Trying to force fixed price contracting intended for a set design would have resulted in risk-loaded contract prices where the real risk remained with the owner, the City of Augusta. The unknowns and variables were too great. Because the Guaranteed Maximum Price assumes set design parameters at the time the price is set, every GMP contract allows for change orders in the event that the design changes in the later stages at the recommendation of the architect and engineers. A change order increases the guaranteed maximum price.

Change Order 2, totaling $836,228, is actually the aggregation of 13 component change orders, including a controversial $399,083 change to the HVAC system to increase air turns to 8 over the base design standard of 2.5. Augusta’s architect approved this change months ago.

Some Augusta commissioners are grumbling because they confused “Guaranteed Maximum Price” with “Lump Sum.” In either contracting method there still would be change orders and they would be legitimate. The commissioners reticence to accept price increases because there is a price “guarantee” is a misunderstanding of the deal.

When a change order like this one gets to the Board of Commissioners it generally is a fait accompli. This looks to be the case in this instance. Under the RW Allen contract, the city is already bound. Look at the dates and signatures on the change order. The master change order 2 is dated October 17, 2011 and is more than four months old! The component change orders have to be of even earlier vintage. RW Allen’s contract for the TEE Center spells out that change orders increase the contract price in Article 15.

There is little doubt that RW Allen was given the authority to proceed. The City of Augusta’s architect/engineer, program manager, and city administrator have all signed the authorization. Under the TEE Center contract, the commissioners have no real options.

Augusta commissioners really should not want a lump sum at this point, because a lump sum contract has fewer options for cost reductions and cost recoveries as the contractors have born the risks and have earned the rewards of bearing those risks. (This doesn’t mean that lump sum contracts do not bear auditing, though!).

Commissioners can look forward to reductions in the Guaranteed Maximum Price as the TEE Center is completed. Allowances will be adjusted to actual cost both in the construction manager contract and in the component subcontracted packages. Contingency in this contract was $566,000 and that will be adjusted, too. Adjustments of ‘costs’ may or may not happen, depending on diligence.

Augusta Commissioners should be happy with the contract that they have and not yearn for a counterproductive fixed price that never would have been a lump sum. Just because a contract and change orders to it set a contract price, that does not mean that an evaluation of the scope documents cannot later reduce that price.

The administration and Board of Commissioners need to take prudent steps to verify the costs at completion. In fact, this needs to be performed for all of the various cost-plus GMP contracts the city has done in the last 3 years. Based upon the volume of these contracts, this writer projects that the costs recaptured by a comprehensive effort would range from $1.25 million to $5 million.

Nothing much is “guaranteed” in a GMP contract, just that the contractor keeps the change. Rarely is the change of the loose pocket variety. Augusta has let its contractors keep $millions in change by fruitlessly grumbling about change orders, then closing out “completed” contracts with nary a care.

That does guarantee a price.

Not if Augusta commissioners get wise.***

Al Gray

Editor’s note: City Stink contributor Al Gray is President of Cost Recovery Works, Inc., a Lincoln County, Georgia-based firm focused on construction, public administration, policy and cost recovery reviews on a guaranteed results basis. Cost Recovery Works is no longer in business, as of December 31, 2020.

Below are the documents referenced in this story:

r w Allen Gmp G-1 Tee Center
RWA – Tee Contract

“Galloping” Away with Taxpayers’ Money

  By ,
Augusta Stumbling Into a “Gallop”

 

Wednesday Feb. 15, 2012

Augusta, GA
*updated at 3:45pm

by IndyInjun

We were watching WRDW’s Chris Thomas on the latest Marriott hotel fiasco, a TEE Center change order of $396,000, when a familiar face appeared defending the hotel’s pricey standards that Augusta is being asked to fund. It was long-time Augusta political activist and Charles Walker acolyte, Wilbert “Butch” Gallop. Mr. Gallop was identified as a “project liaison,” whatever that is.

At last count there were three oversight and management service companies, TVS Design, Heery International, and R.W. Allen, charging well over $4 million to manage the TEE Center and Reynolds Street Parking Deck projects. That’s a lot of overhead! Why are so many needed to administer these trouble-plagued jobs? Why is it so costly?

One reason is that Augusta is being charged $177.91 per hour for Butch Gallop’s services by program Manager Heery International for his work as “community liaison.”

We have a hint of what Butch Gallop’s “liaison” work for Heery International might entail from a June 17, 2009 article in the Augusta Chronicle by Johnny Edwards. In this article we learned that Gallop essentially worked as a “community organizer” to help drive out the vote by canvassing neighborhoods and supposedly dispelling “misinformation” to pass the SPLOST VI. Gallop worked alongside Janie Peel, Brenda Durandt, and Tricia Hughes on the “Yes to SPLOST VI” campaign.

Butch Gallop is quoted in the article: “The team that was put together — Brenda Durant, Janie Peel and Tricia Hughes — put something together to really educate the community… The naysayers always have something negative to say, but they didn’t know why they were negative. All they kept talking about was pork-barrel projects.”

All this while he was on the payroll of Heery International, which manages Augusta’s sales tax projects. So does that mean taxpayers are indirectly paying Butch Gallop to be a lobbyist and community organizer to help push thru these SPLOSTs, which greatly benefit Heery International? It sure appears that way.

Casting the net beyond the TEE Center and Deck projects we found Butch Gallop in the pay of ESG Operations, Inc., operator of the Messerly Waste Water Treatment Plant, at the rate of $2,500.00 per month. While whether Gallop was charged as a reimbursable cost under the waste water treatment plant contract or is absorbed in the overhead cost of the contractor’s services is immaterial. Augusta paid.

Just how many other Augusta contractors feel compelled to engage Butch Gallop’s services? What is going on here?

What exactly does a “liaison” do?

In these times of tough budget decisions, employee pay and benefit reductions, and aggressive cost-cutting, how will city leaders defend this galloping cost?

Augusta is squandering millions of dollars, while its commissioners dawdle and play the most unfortunate of political games. Stay tuned.***

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The Hotel That Never Was

  By ,
Artist’s rendering of the proposed Hyatt Place hotel

Tuesday, Feb. 14, 2012
Augusta, GA

Donated land was not the only promise broken in the TEE Center and Parking Deck debacle. Some people may remember that the promise of  a $25,000,000 Hyatt Place Hotel was a major selling  point more than two and a half years ago to force commissioners to act on approving the TEE Center and Parking Deck deal. We have this Augusta Chronicle article from August 11, 2009 that shows how Julian Osbon and Courtland Dusseau were essentially issuing an ultimatum to commissioners: Approve the TEE Center and Parking Deck or the city loses the hotel. The TEE Center and deck were eventually approved on Dec. 9, 2009.

It is very clear that the hotel was being used as a bargaining chip to get the TEE Center agreement passed, which in August of 2009 was at an impasse. In the article, Julian Osbon, who owned the land where the hotel was to be built said, “I don’t think all the people understand the consequences. I wanted to make sure that if we did lose the hotel, that everyone had an opportunity to consider the possibilities.”

Osbon, also sent a letter to commissioners and the Mayor that expressed this same sentiment, urging them to approve the TEE Center or they would lose the hotel and lose what he estimated being a $215,000,000 25 year economic impact to the city. Osbon also sent out an URGENT COMMUNITY ALERT (see 2nd pdf at end of article) to elected officials and business leaders essentially telling them that the only thing holding back construction on a new $25 million hotel was an agreement over the TEE Center. He also goes into a lengthy diatribe excoriating the black commissioners who he believes were holding up progress on the TEE Center, reserving most of his venom for Dist. 1 commissioner Betty Beard.

“Perhaps Commissioner Beard does not understand that revenue producing venues such as a successful convention center is where the money will come from to revitalize the Laney-Walker and Bethlehem neighborhoods which are her pet projects, but are unfortunately in another Commissioner’s district.   It appears that District One voters have been ignored by our elected representative.”  

You must remember that 2009 was an election year and Beard’s seat was coming up for reelection. It appears as an obvious political threat towards Beard:  Vote for the TEE Center or pay a political price for not doing so. Shortly after this URGENT COMMUNITY ALERT went out, Beard decided not to run for reelection. Ultimately, Matt Aitken, a pro TEE Center candidate defeated Bill Fennoy in a run-off and took office. After his election win, the TEE Center agreement was approved just days later.

Osbon also issued a deadline of August 31, 2009 to commissioners to approve the TEE Center agreement saying in his Community Alert: “But August 31st is an important date for me. It represents the time to “draw a line in the sand,” I invested in my property at a time when it was very questionable as to whether or not it was a wise thing to do. As mentioned above I have held the property for more than a decade primarily to insure the best use of it by the community. Yes, I will make money if the hotel closes on it. And probably I will make more money if they do not. My property is the key piece in any development in the Common area and will easily increase in value. But nothing will bring more value to Augusta than the proposed Hyatt Place Hotel.

 

Osbon’s self-imposed August 31st deadline for an agreement on the TEE Center was extended when things got even more complicated when revelations emerged that two commissioners were allegedly offered bribes by local attorney David Fry. That news came out about the same time as Mr. Osbon’s date for “drawing a line in the sand.” And complicating matters further is that one of the commissioners who was approached in the alleged bribery attempt, Alvin Mason, revealed that he was receiving political threats back in May of that year from a prominent local businessman, Joe Edge, the President of Sherman and Hemstreet Real Estate Company, who ironically was handling the sale of the land for the proposed Hyatt Place hotel. This Sept. 15th, 2009 article by Johnny Edwards  that appeared in the Augusta Chronicle gives more details about this political threat.

Alvin Mason released excerpts of the email he received from Mr. Edge. Here is one of the more interesting lines: “I own real estate in your district, and I will do everything I can to ensure you don’t get re-elected if the commission does not change their mind.” (referencing the stalled vote on the TEE Center). The May 28th email references the proposed Hyatt Place hotel, which was not made public until August of that year when Osbon began issuing his ultimatums to commissioners.

The hotel had now become a focal point in the debate over the TEE Center and commissioners were being urged and in some cases politically threatened to change their votes on it based on the promise of this Hyatt Place hotel and its supposed  $215 million 25 year economic impact on the city.

The First Signs of Trouble

So now let’s fast forward a few months to January of 2010. The TEE Center and its companion parking deck have been approved and plans are underway to begin construction. We have this  January 20, 2010 article in The Augusta Chronicle by Tim Rausch that seems to indicate that the hotel was moving forward. Courtland Dusseau, a managing partner of Alabama based Legacy Hospitality, LLC, the developers of the hotel said, “We’re working on budgets today. We’ll have the business plan, financial plan put together by tomorrow and start meeting with bankers. We were concerned about when the TEE Center was starting. As long as it’s gonna happen, we’re fine.” It was even expected that the hotel would be open a year before the TEE Center. But here we are in 2012 just six months from the expected opening of the TEE Center and there has not even been a ground breaking for the hotel.

But in that same January 20th Augusta Chronicle article we had our first warning that this hotel may not ever happen. In the article, Dusseau admitted that he had no time line in place for ground breaking and had still not secured financing for the project. He was hoping that a grant from the OneGeorgia Foundation would help him secure other financing from local banks. So now, something that seemed like a sure thing once the commissioners signed the dotted line approving the TEE Center was up in the air. And it was a little more than ironic that Mr. Dusseau could not give the public a date for groundbreaking when commissioners were being issued a deadline just a few months prior to approve the TEE Center, based on this hotel. We have to ask, Did commissioners ever bother to get anything in writing from Mr Dusseau prior to voting to approve the TEE Center project on Dec. 9, 2009, that he did indeed have guarantees for financing the hotel  if the TEE center project was approved and built? Just like the supposed promise to release the liens on the property where the parking deck sits, getting things in writing before voting on something is always the smart course of action. But it does not appear that commissioners have learned from past mistakes.

Time Goes By

Months and months passed and still there were no announcements of when there would be groundbreaking for this Hyatt Place hotel. Then we have an Augusta Chronicle article from October 5 2010 telling us that the project was indefinitely delayed because of issues of securing financing. Mr Dusseau told Augusta Chronicle reporter Tracey McManus, “In today’s economic climate, it’s just really hard to get hotel financing. It’s just a matter of time.” A matter of time? Like the next century? While commissioners were being rushed by Mr Dusseau and Julian Osbon just a year earlier to approve the TEE Center project because of the immediacy of this hotel… now he was taking his own sweet time to secure financing. We have to ask… shouldn’t the guarantees for financing have been secured before Mr Osbon started issuing ultimatums to commissioners over this hotel?

Then, in December of 2010, Dusseau was coming to city leaders with his hands out. He was hoping the city would lend its credit to help him with financing his 139 room Hyatt Place hotel. This Dec. 13, 2010 Augusta Chronicle article by Susan McCord gives more details. City Administrator Fred Russell declined the request saying that the city didn’t need to be in the hotel business, but two new levels to the TEE Center Parking Deck were added around this time. It is not clear if that was motivated to help Mr Dusseau secure financing for the hotel.

A 2009 parking study did reference possible future development as one of the justifications for building a parking deck rather than less expensive surface parking. In that study, which was released in October of 2009, two options were recommended to satisfy expanded parking needs for the TEE Center. Option 1 was a much cheaper surface parking lot along 9th street at The Riverwalk. The second option was building a 400 space parking deck across Reynolds Street. Were city leaders compelled to go with the more expensive deck option because of the promises being made by Mr Dusseau and Osbon of another hotel being built directly across the street? We will have more on this in an upcoming article.

But my how things had changed. What was being presented as a $25 million gift to the city of Augusta by private developers just little more than a year earlier was now being pitched as something that the city should go into millions of dollars in debt to get built.

In a 2009 Letter to the Editor in The Augusta Chronicle, Julian Osbon called approving the TEE Center a “no-brainer”… and he once again referenced this hotel saying, “Does anyone really think the Hyatt Hotel Group would put a new $25 million facility in downtown Augusta without doing their due diligence?”

 

Due diligence? Like securing financing upfront? Perhaps Mr Osbon should have done his due diligence by getting assurances from Mr. Dusseau that this hotel was a sure thing as long as the TEE Center was approved before he started issuing ultimatums and deadlines to commissioners and firing off snarky letters to the editor and issuing his URGENT COMMUNITY ALERT.
Commissioners were pressured to approve the TEE Center partly because of this hotel and it appears by all accounts, that the hotel was pure fantasy…. merely a proposal and not a shovel ready project that simply awaited their approval. But this is not the first time commissioners have been  mislead over the TEE Center. They were told land would be donated and it never was. And let’s not forget that we have a trial about to get underway involving the alleged attempted bribery of two commissioners over The TEE Center and Parking Deck. But here we are two and a half years after Julian Osbon issued his first ultimatum over the TEE Center based on this hotel which it appears will never be built. Blame the bad credit market, but the fact remains that this hotel project should have been presented as a mere proposal that still required securing financing, instead of a sure thing to get commissioners to change their votes on the TEE Center. It appears that commissioners lived up to their end of the bargain. They approved the TEE Center project. The parking deck is open for business and the convention center is just months away from opening. Like the land that was promised to be donated to the city for the parking deck, it appears that this hotel has also turned into thin air.***

Below are pdf files of the Augusta 10, 2009 Memorandum and the Community Alert that Julian Osbon sent out:

OsbonMemorandum

Below is the Urgent Community Alert
OsbonCommunityAlert

More Deception in Parking Gate?

  By ,
Once again a majority of commissioners have egg on their face

Monday, Feb. 13, 2012
Augusta, GA
By The Outsider

Well it appears that there may be no deal after all to release the liens on the property where the $12 million TEE Center Parking Deck sits, nor does there appear to be any deal in place for the property to be acquired by the city’s land bank.

So it looks like instead of coming up with a last ditch effort to solve Parking Gate, what we have is merely more subterfuge and deception. And the mission of the city’s land bank is to acquire blighted properties that are often delinquent in property taxes. The property where the TEE Center Parking Deck sits hardly qualifies. So it appears we are back to square one. But the question must be asked… what exactly happened at last Tuesday’s commission meeting? Were commissioners deceived yet again over this parking deck saga? It certainly appears that way.

Al Gray and Lori Davis presented compelling evidence at last Tuesday’s commission meeting as to why the motion to approve the parking deck management contract with Augusta Riverfront, LLC should be defeated. Mr Gray made the point that commissioners should use this as an opportunity to exercise some leverage to demand more transparency and the right to audit all of the city’s financial relationships with Augusta Riverfront, LLC. That demand sent Augusta Riverfront, LLC and their protectors on the commission into panic mode, and at the last minute in what seemed to be a Hail Mary Pass, commissioner Jerry Brigham said that he had an agreement with Augusta Riverfront, LLC, that Wells Fargo had agreed to release all liens and have the land transferred to the city’s land bank. It had appeared that a solution had been reached, and a majority of commissioners, splitting along racial lines approved the management agreement with Augusta Riverfront, LLC. The four black commissioners said that Tuesday’s commission meeting was the first that they had heard of this deal. But it appears this solution was all a ruse, and nothing but an attempt to thwart the efforts to open up the books to the other contracts the city has with Augusta Riverfront, LLC.

So What’s Really Going On Here?

Did Commissioner Brigham really have an agreement with Augusta Riverfront, LLC before last Tuesday’s commission meeting? Commissioner Bowles says it all came together the afternoon before Tuesday’s vote. It seems to us that Commissioner Brigham should be able to produce something in writing from the bank that they had agreed to release the liens and consulted with the land bank that they could take the property before presenting this as a solution to commissioners. Was there anything in writing from the bank confirming release of the liens? We also have to question the judgement of the other five commissioners who voted for this “deal” last Tuesday. Now they all have egg all over their faces. There is no documentation that shows the bank has agreed to release the liens. So we have to ask. What’s really going on here? Was this really a good faith effort to find a last minute solution to put the land under city ownership free of all liens or was this a ruse to rush a management agreement through to cover all of this up?***

CS

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