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Wording ties up proposed ADICA, RiverQuarium management deal

City attorney: ADICA cannot commit city funds to aquarium

Officials with the downtown Flint RiverQuarium are seeking a commitment from the Albany-Dougherty Inner City Authority for future financial support. (Albany Herald file photo)

Officials with the downtown Flint RiverQuarium are seeking a commitment from the Albany-Dougherty Inner City Authority for future financial support. (Albany Herald file photo)

ALBANY — While all parties are “playing nice” as they seek a mutual “path” to an agreement that has been hanging in limbo for years, a potential dilemma appears to be brewing as officials with the cash-strapped Flint RiverQuarium seek a binding management agreement with the Albany-Dougherty Inner City Authority.

Tommy Gregors, who serves as executive director of the Thronateeska Heritage Museum and for the past several months has served — without pay — as interim director of the RiverQuarium, brought a rough draft of an agreement to the ADICA board Wendesday. Gregors, who also serves on the ADICA board, said RiverQuarium officials are looking for a commitment of support from ADICA as they embark on an aggressive fundraising campaign to keep the downtown aquarium open for years to come.

“The fundraising campaign is a five-year effort, and being able to tell (potential) donors we have a firm commitment in place over that time period is going to benefit (the fundraising efforts),” Gregors told the ADICA board. “What we’d like is the kind of agreement the city of Albany has with Chehaw (Wild Animal Park).”

The agreement draft Gregors presented to the ADICA board, which is based on a pact between the development authority and the former Albany Tomorrow Inc. development organization, contains elements that City Attorney Nathan Davis called “deal killers.”

Among the concerns mentioned by Davis are paragraphs in the agreement calling for unspecified financial commitment from ADICA.

One reads: “The Authority (ADICA) recognizes its fiduciary responsibility as it related (sic) to the successful operation of the Flint RiverQuarium. The Authority will make every effort through its powers to secure funding for the RiverQuarium from government and private sources.”

The next paragraph also caught Davis’ attention: “The Authority shall furnish the Corporation (Flint RiverQuarium Inc.) with suitable office space, office furniture and equipment, including computer equipment, and electricity, heat, water and janitorial services therein which is (sic) adequate to house the management of the RiverQuarium.”

The problem with the agreement, Davis and interim city Finance Director Jo Brophy pointed out, is that ADICA has no authority to enter into such an agreement without the permission of the city.

“This authority cannot commit funds of the city,” Brophy told the board flatly.

Davis said that while ADICA is financed through the city, one of its primary functions is to serve as a monetary “pass-through” for exchanges in which the city may not make a payment directly to an outside entity.

“The vast majority of the money ADICA uses comes from the city at the city’s discretion,” Davis said Thursday. “While ADICA may take on any number of projects, the ultimate responsibility for payment falls on the city. Realistically, ADICA has no true source of income.”

Gregors, who was unavailable for further comment Thursday and Friday, told the ADICA board, obviously jokingly, that the authority “owes (the RiverQuarium) a significant amount of money because you haven’t supplied the office space, furniture and equipment, computer equipment, heat, water and janitorial services over the years of the existing agreement.”

Davis said Thursday that while Gregors — whom the city attorney called a “very professional advocate for the RiverQuarium” — may have spoken in jest about the existing agreement between ADICA and the RiverQuarium through Albany Tomorrow and property owner the Georgia Department of Natural Resources, he is confident the agreement does not legally bind ADICA to any fiduciary responsibilities.

“While the document that Mr. Gregors used as a basis for the new agreement does appear to be a duly signed contract, I have found no evidence of existing minutes from a meeting showing that the document was voted on and approved by any legal authority,” Davis said. “A recent Georgia Supreme Court decision said that any document, even if it is signed, that has no minutes to support its validity is not a binding document. The Supreme Court has also ruled that no government entity may endemnify a private corporation.

“I don’t think there will be a problem with working out a management deal that the RiverQuarium is looking for, but I personally don’t believe — and neither does the city — in signing open-ended agreements. If there is any agreement for support of the RiverQuarium, it must be very specific as far as what is to be supplied and the period of time for which it is to be supplied. And it must be approved by the city.”

The discussion sparked ADICA board chairwoman LaNicia Hart to ask if Gregors’ relationship with the RiverQuarium and with ADICA constituted a conflict of interest in the discussion.

“I don’t think so, because Mr. Gregors has no personal financial interest in this agreement,” Davis said. “I believe he has served honorably as an advocate to get this agreement in place.”

Said Gregors: “For the purposes of this agreement, I represent the Flint RiverQuarium and recuse myself from this board. But it must be noted that if Flint RiverQuarium Inc. walks away from the facility, the responsibility (for management) would fall with this board. That’s one of the reasons we need an agreement in place.”

ADICA board member David Prisant agreed that an agreement is needed.

“We realize we’ve got to do something, but you (Gregors) have to show us a path to get there,” Prisant said.

Inner City Authority President Aaron Blair, who also serves as Albany’s downtown manager, said he believes an agreement can be worked out.

“Really, I think all the RiverQquarium folks are looking for is some level of support from ADICA as they try to secure funding,” Blair said Thursday. “With this agreement, I think the only real problem is with the wording. By working transparently, we should be able to get this worked out.”