Bibb County School District v. Dallemand, et Al.

MOTION to Dismiss Complaint re Amended Complaint :

M.D. Ga.May 1, 2017

IN THE UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF GEORGIA MACON DIVISION BIBB COUNTY SCHOOL DISTRICT, Plaintiff, v. Civil Action File No.: 5:16-cv-00549-MTT ROMAIN DALLEMAND, THOMAS TOURAND, PROGRESSIVE CONSULTING TECHNOLOGIES, INC., ISAAC CULVER, III, COMPTECH COMPUTER TECHNOLOGIES, INC., ALLEN J. STEPHEN, III, PINNACLE/CSG, INC., and CORY MCFARLANE, Defendants. PROGRESSIVE CONSULTING TECHNOLOGIES, INC. AND ISAAC CULVER, III’S 12(B)(6) MOTION TO DISMISS PLAINTIFF’S AMENDED COMPLAINT OR IN THE ALTERNATIVE, MOTION TO COMPEL ARBITRATION NOW COME, Progressive Consulting Technologies, Inc. and Isaac Culver, III (hereinafter referred to as the “Progressive Defendants”), by and through undersigned counsel of record, and pursuant to Fed.R.Civ.P. 12(b)(6), hereby move this Court to dismiss Counts I, III, V, VIII, and XI of Plaintiff’s Amended Complaint for failure to state a claim against the Progressive Defendants upon which relief can be granted. In the alternative, the Progressive Defendants move to compel Plaintiff’s claims against the Progressive Defendants to arbitration pursuant to Section 6.04 of the Services Agreement between Plaintiff and Progressive. A brief in support of this motion is filed herewith. [signature on following page] Case 5:16-cv-00549-MTT Document 70 Filed 05/01/17 Page 1 of 5 Respectfully submitted this 1st day of May, 2017. Goodman McGuffey LLP Attorneys for Progressive Consulting Technologies, Inc., and Isaac Culver, III By: /s/ ELISSA B. HAYNES ROBERT A. LUSKIN GA State Bar No. 004383 rluskin@gmlj.com ELISSA B. HAYNES GA State Bar No. 804466 ehaynes@gmlj.com 3340 Peachtree Road NE, Suite 2100 Atlanta, GA 30326-1084 (404) 264-1500 Phone (404) 264-1737 Fax Case 5:16-cv-00549-MTT Document 70 Filed 05/01/17 Page 2 of 5 IN THE UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF GEORGIA MACON DIVISION BIBB COUNTY SCHOOL DISTRICT, Plaintiff, v. Civil Action File No.: 5:16-cv-00549-MTT ROMAIN DALLEMAND, THOMAS TOURAND, PROGRESSIVE CONSULTING TECHNOLOGIES, INC., ISAAC CULVER, III, COMPTECH COMPUTER TECHNOLOGIES, INC., ALLEN J. STEPHEN, III, PINNACLE/CSG, INC., and CORY MCFARLANE, Defendants. CERTIFICATE OF SERVICE This is to certify that I electronically filed this PROGRESSIVE CONSULTING TECHNOLOGIES, INC. AND ISAAC CULVER, III’S 12(B)(6) MOTION TO DISMISS PLAINTIFF’S AMENDED COMPLAINT OR IN THE ALTERNATIVE, MOTION TO COMPEL ARBITRATION with the Clerk of Court using the CM/ECF system which will automatically send e-mail notification of such filing to the following attorneys of record: W. Warren Plowden, Jr., Esq. warren.plowden@jonescork.com Thomas W. Joyce, Esq. Tom.joyce@jonescork.com Brandon A. Oren, Esq. Brandon.oren@jonescork.com Jones Cork, LLP 435 Second Street PO Box 6437 Macon, GA 31208-6437 Counsel for Plaintiff Case 5:16-cv-00549-MTT Document 70 Filed 05/01/17 Page 3 of 5 Jerry A. Lumley, Esq. jlumley@lumleyandharper.com Lumley & Harper, LLC 6030 Lakeside Commons Drive Macon, GA 31210 Counsel for Plaintiff Jack L. McLean Jr., Esq. Mccl3690@comcast.net Jack L. McLean Jr. & Company LLC 1367 East Lafayette St., Ste. A Tallahassee, FL 32301 Counsel for Defendants Pinnacle/CSG, Inc. and Cory McFarland William H. Turner, Jr., Esq. Bill@turnerlawrence.com Turner & Lawrence, P.C. 423 S. Mulberry Street Jackson, GA 30233 Counsel for Defendant Thomas Tourand Richard W. Gerakitis, Esq. Richard.gerakitis@troutmansanders.com Lindsey B. Mann, Esq. Lindsey.mann@troutmansanders.com 5200 Bank of America Plaza 600 Peachtree Street NE Atlanta, GA 30308 Counsel for CompTech Computer Technologies, Inc. and Allen J. Stephen, III Timothy G. Pepper, Esq. pepper@taftlaw.com Taft Stettinius & Hollister, LLP 40 North Main St., Ste. 1700 Dayton, OH 45423-1029 Counsel for CompTech Computer Technologies, Inc. and Allen J. Stephen, III Larry K. White, Esq. larrykwhite@lkwlaw.net Larry K. White LLC 1367 E. Lafayette Street, Suite A Tallahassee, FL 32301 Counsel for Romain Dallemand Case 5:16-cv-00549-MTT Document 70 Filed 05/01/17 Page 4 of 5 This 1st day of May, 2017. /s/ ELISSA B. HAYNES ELISSA B. HAYNES GA State Bar No. 804466 ehaynes@gmlj.com Goodman McGuffey LLP 3340 Peachtree Road NE, Suite 2100 Atlanta, GA 30326-1084 (404) 264-1500 Phone (404) 264-1737 Fax 2224-0268/Doc ID #4341708 Case 5:16-cv-00549-MTT Document 70 Filed 05/01/17 Page 5 of 5 IN THE UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF GEORGIA MACON DIVISION BIBB COUNTY SCHOOL DISTRICT, Plaintiff, v. Civil Action File No.: 5:16-cv-00549-MTT ROMAIN DALLEMAND, THOMAS TOURAND, PROGRESSIVE CONSULTING TECHNOLOGIES, INC., ISAAC CULVER, III, COMPTECH COMPUTER TECHNOLOGIES, INC., ALLEN J. STEPHEN, III, PINNACLE/CSG, INC., and CORY MCFARLANE, Defendants. PROGRESSIVE CONSULTING TECHNOLOGIES, INC. AND ISAAC CULVER, III’S BRIEF IN SUPPORT OF THEIR 12(B)(6) MOTION TO DISMISS PLAINTIFF’S AMENDED COMPLAINT OR IN THE ALTERNATIVE, MOTION TO COMPEL ARBITRATION Progressive Consulting Technologies, Inc. and Isaac Culver, III (collectively referred to as the “Progressive Defendants”) hereby submit this Brief in Support of their Motion to Dismiss Plaintiff’s Amended Complaint or in the Alternative, Motion to Compel Arbitration, and show this Honorable Court as follows: I. STATEMENT OF FACTS Plaintiff Bibb County School District (“BCSD”) filed the subject lawsuit as a result of Defendants’ alleged scheme to defraud Plaintiff in excess of $7,865,200.00 in funds during 2012 and 2013. Case 5:16-cv-00549-MTT Document 70-1 Filed 05/01/17 Page 1 of 18 2 A. The Technology Project On or about November 3, 2009, Bibb County passed a referendum for a five-year extension of a one percent sales tax to fund BCSD capital improvement projects including technology upgrades for BCSD. Doc. 50, ¶ 23. In June of 2012, BCSD began searching for a new Executive Director of Technology to lead the implementation of BCSD’s Technology Project. Id. at ¶ 33. Defendant Tourand was ultimately selected and hired to serve as BCSD’s Executive Director of Technology. Id. at ¶ 39. On June 25, 2012, BCSD issued public Request for Qualifications (“RFQ”) No. 12-72 to find a company to serve as Technical Project Management Services for the BCSD Technology Project. Id. at ¶ 43. The primary purpose of RFQ No. 12-72 was to find “qualified applicants who wish to be pre-qualified to provide technical oversight for technology infrastructure and hardware upgrades with ESPLOST and E-rate funding.” Id. at ¶ 44. The Technical Project Manager would also be responsible for providing on-site management of vendors at various locations and schools on technology upgrades and would measure network performance and connectivity. Id. at ¶ 45. On or about July 18, 2012, Defendant Progressive (“Progressive”) submitted a response to RFQ No. 12-72. Id. at ¶ 46. Progressive was one of the three companies that BCSD’s review panel pre-qualified under RFQ No. 12-72. Id. at ¶ 47. Approximately one month later, on or about August 17, 2012, BCSD posted Request for Proposals (“RFP”) No. 13-09 for Technical Project Management for E-Rate Construction. Id. at ¶ 48. The goal of RFP No. 13-09 was to find a company to “perform turnkey design and implementation of upgrade and renovation work for technology infrastructure and E-Rate Construction Projects”. Id. at ¶ 49. The bid for RFP No. 13-09 Case 5:16-cv-00549-MTT Document 70-1 Filed 05/01/17 Page 2 of 18 3 was open to the three companies that pre-qualified under RFQ No. 12-72, which were Progressive, CORE ECS, and Rosser/Tala (JV). Id. at ¶ 48. On or about September 17, 2012, Progressive submitted a “Contract Administration Plan” in response to RFP No. 13-09. Id. at ¶ 51. A few days later, on September 20, 2012, the BCSD review panel voted to authorize BCSD to negotiate a contract with Progressive for the Technical Project Management Services position. Id. at ¶ 53. On September 24, 2012, Defendant Dallemand, Superintendent of BCSD at the time, entered into and executed a Services Agreement with Progressive as BCSD’s authorized representative. Id. at ¶ 55; See also Services Agreement, Ex. A. In accordance with this Services Agreement, BCSD Purchase Order No. 70-36372 was prepared on or about October 11, 2012 for “Contract Services on Technology Infrastructure” and made payable to Progressive. Doc. 59, ¶ 60. B. Events Following Execution of the Progressive/BCSD Services Agreement Following the execution of the Services Agreement between Plaintiff and Progressive, pandemonium ensued in the Bibb County School District. On December 10, 2012, Superintendent Dallemand removed former BCSD Chief Financial Officer Ron Collier from his position after he had expressed concerns surrounding Dallemand’s expenditures of BCSD’s funds. Id. at ¶ 62. Two days later, Dallemand assigned Sharon Roberts the duties and responsibilities of Chief Financial Officer. Id. at ¶ 63. Over the next several weeks, Plaintiff contends that the Defendants collectively worked to defraud BCSD of money and property to Defendants’ benefit. See generally Doc. 59. In regards to Progressive, Plaintiff contends that Progressive was paid for its services as Technical Project Manager upon submission of “inflated” and “fraudulent” invoices. Id. at ¶ 68. Plaintiff’s Amended Complaint contends that Defendants Dallemand, Tourand, Progressive and Culver Case 5:16-cv-00549-MTT Document 70-1 Filed 05/01/17 Page 3 of 18 4 “demanded”, “forced” and “manipulated” interim Chief Financial Officer Sharon Roberts to wire $3,247,000.00 of BCSD funds to pay for software from Defendant Pinnacle and $3,768,000.00 to Defendant CompTech for the purchase of 15,000 NComputing devices for BCSD. Id. at ¶ ¶ 101, 107. Plaintiff’s Amended Complaint further contends that these purchases were fraudulent and made without Plaintiff’s approval. Id. at ¶ 108. Further, Plaintiff states that it never received the Pinnacle software and was unable to make use of the NComputing devices due to software compatibility issues which Defendants purportedly should have known about. Id. at ¶ ¶ 113, 130. Plaintiff’s one hundred and thirty-three (133)-page Amended Complaint contains an array of allegations against the Progressive Defendants as part of a purported scheme to defraud the BCSD. See generally Doc. 59. Specifically, Plaintiff asserts claims of federal and Georgia RICO violations, fraud, breach of contract, negligence, unjust enrichment and inducing and aiding breach of fiduciary duty. Plaintiff’s federal RICO, fraud, breach of contract, negligence and inducing and aiding breach of fiduciary duty claims against the Progressive Defendants fail to state a claim for which relief can be granted and should therefore be dismissed. II. STANDARD OF REVIEW Federal Rule of Civil Procedure 12(b)(6) permits dismissal where a plaintiff’s complaint fails to state a claim upon which relief can be granted. Federal Rule of Civil Procedure 8(a)(2) provides additional guidance when determining what constitutes the requisite well-pleaded complaint. Fed.R.Civ.P. 8(a)(2) states that “[a] pleading that states a claim for relief must contain…a short and plain statement of the claim showing that the pleader is entitled to relief…” In Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (2007), the Supreme Court examined these federal rules and set forth the applicable pleading standard which we know today: Case 5:16-cv-00549-MTT Document 70-1 Filed 05/01/17 Page 4 of 18 5 While a complaint…does not need detailed factual allegations, a plaintiff’s obligation to provide the “grounds” of his “entitlement to relief” requires more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do,…Factual allegations must be enough to raise a right to relief above the speculative level,…on the assumption that all the allegations in the complaint are true (even if doubtful in fact). Id. at 555 (citations and footnote omitted). In the context of a motion to dismiss, courts “must take all the factual allegations in the complaint as true, [but] are not bound to accept as true a legal conclusion couched as a factual allegation.” Papasan v. Allain, 478 U.S. 265, 286 (1986). For a plaintiff to survive a motion to dismiss, “a complaint must contain sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its face. A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (punctuation omitted). III. ARGUMENT AND CITATIONS OF AUTHORITY A. Counts I, III, and VIII of Plaintiff’s Amended Complaint are Barred by the Applicable Statutes of Limitation. At the outset, the Progressive Defendants note that many of Plaintiff’s claims are barred by the applicable statutes of limitation. While matters dealing with statutes of limitation are not typically dismissed at this stage of litigation, such is not the case where Plaintiff’s Complaint, or in this case, Plaintiff’s Amended Complaint, alleges facts to support a defense based on the applicable statutes of limitation. Case 5:16-cv-00549-MTT Document 70-1 Filed 05/01/17 Page 5 of 18 6 1. Plaintiff’s Federal RICO and Fraud Claims Against the Progressive Defendants are Time Barred. Plaintiff’s Amended Complaint seeks to create a timeline of events as to when each purported act of the Progressive Defendants occurred. Starting with Count I of Plaintiff’s Amended Complaint which seeks to hold the Progressive Defendants liable for violations of the federal Racketeer Influenced and Corrupt Organizations Act (RICO), Paragraph 181(B)(v) states: Defendants Progressive and Culver having intentionally devised a scheme with other Defendants to defraud BCSD and other schools and school districts of money and property and for purposes of executing such scheme, fraudulently and intentionally executed a Project Manager’s Certification for Payment dated December 13, 2012 intentionally representing to BCSD that payment of the fraudulent Pinnacle invoice was authorized and proper…Defendants Progressive and Culver intentionally transmitted this fraudulent document or caused this document to be transmitted by wire or sent by mail in interstate commerce… Plaintiff’s Amended Complaint contains an array of actions and dates which the Progressive Defendants purportedly participated to defraud Plaintiff. For example, Plaintiff contends that “Defendant Culver and other representatives of Progressive…met with Defendant Dallemand behind closed doors on a near daily basis at BCSD offices from July, 2012 through February, 2013 to discuss and plan the scheme…” Doc. 59, ¶ 180. (emphasis added). It is further alleged that “Defendants Progressive and Culver…by use of wire in interstate commerce, acquired the domain name www.ProsceniumSoft.com...on or about September 12, 2007 which was an essential part of their scheme to defraud BCSD.” Id. at ¶ 181(B)(i). Specifically, Plaintiff avers that beginning in April 10, 2011, the Progressive Defendants “fraudulently advertised Proscenium Software on its website the purpose of which was to induce schools and school districts, including BCSD, by means Case 5:16-cv-00549-MTT Document 70-1 Filed 05/01/17 Page 6 of 18 7 of misrepresentations and fraud to purchase “Proscenium Software” from Defendants which did not exist…” Id. Plaintiff’s Amended Complaint also lists particular dates for payments made to the Progressive Defendants. Plaintiff states that “[o]n October 11, 2012, BCSD Purchase Order No. 70- 36372 in the initial amount of $500,000.00 was prepared for “Contract Services on Technology Infrastructure” payable to Defendant Progressive pursuant to the September 24, 2012 Services Agreement.” Id. at ¶ 60. Further, Plaintiff references December 10, 2012 as the date Defendant Dallemand removed Ron Collier from his position as Chief Financial Officer of BCSD and an investigation began into Mr. Collier’s department. Id. at ¶ 62. The statute of limitations for civil RICO actions is four years. McCaleb v. A.O. Smith Corp., 200 F.3d 747, 751 (11th Cir. 2000); See also Klehr v. A.O. Smith Corp., 521 U.S. 179, 183 (1997). This four year time period “begins to run when the injury was or should have been discovered, regardless of whether or when the injury is discovered to be part of a pattern of racketeering.” Rowe v. Gary, Williams Parenti, Watson & Gary, P.L.L.C., 181 F.Supp.3d 1161, 1173 (N.D.Ga., March 31, 2016) (internal quotations and citations omitted). As with Plaintiff’s federal RICO claim, the four year statute of limitations for fraud begins to accrue at the time plaintiff discovers such fraud or by reasonable diligence, should have discovered the fraud. O.C.G.A. § 0-11-96; See also Dunn v. Towle, 170 Ga. App. 487, 488 (1984). Using the dates of the Progressive Defendants’ purported actions as set forth in Plaintiff’s Amended Complaint, which date back to at least April of 2011, combined with the date of the first contract payment to Progressive as well as Superintendent Dallemand’s removal and reassignment of the Chief Financial Officer position within the BCSD, it follows that Plaintiff had discovered, or Case 5:16-cv-00549-MTT Document 70-1 Filed 05/01/17 Page 7 of 18 8 at the very least reasonably should have discovered a potential RICO violation at that point in time yet suit was not filed in this matter until December 15, 2016. The same argument applies for Plaintiff’s fraud claim against the Progressive Defendants. Plaintiff contends that the Progressive Defendants “fraudulently induced” BCSD to purchase Proscenium Software sometime between April 2011 and August 2014. Plaintiff further contends that the Progressive Defendants, in furtherance of their purported scheme, “fraudulently and intentionally executed a Project Manager’s Certification for Payment dated December 13, 2012 intentionally representing to BCSD that payment of the fraudulent Pinnacle Invoice was authorized and proper…when Defendants knew that they were not…” Id. at ¶ 181(B)(v). Finally, Plaintiff asserts that the Progressive Defendants “fraudulently represented to BCSD’s Board the hourly rates which would be charged by Defendant Progressive for personnel working on the Technology Project by representing to the Board in Defendant Progressive’s September 17, 2012 Contract Administration Plan that certain rates would be charged and one week later significantly changing those rates…” Id. at ¶ 219(T). Thus, Plaintiff clearly discovered the alleged fraud on September 24, 2012 at the very latest when the Superintendent of BCSD was presented with a Services Agreement that, according to Plaintiff, contained significantly higher rates. These significantly higher rates cannot be said to have been fraudulently concealed from Plaintiff. As such, Plaintiff’s federal RICO and fraud claims against the Progressive Defendants should be dismissed. 2. Plaintiff’s Negligence Claim Against the Progressive Defendants is Time Barred. O.C.G.A. § 9-3-31 provides that “[a]ctions for injuries to personality shall be brought within four years after the right of action accrues.” Under this statute, “a cause of action accrues at the time of injury.” DeKalb County v. C.W. Matthews Contracting Co., Inc., 254 Ga. App. 246, 248 (2002). Case 5:16-cv-00549-MTT Document 70-1 Filed 05/01/17 Page 8 of 18 9 Plaintiff’s Amended Complaint alleges that the Progressive Defendants breached their duty of insuring “that the appropriate BCSD polices were adequately followed and applied” and in “otherwise conduct[ing] themselves in a manner that was in derogation of BCSD’s policies.” Doc. 59, ¶ 273. Plaintiff further alleges that the Progressive Defendants breached their duty to Plaintiff by “negligently approving and certifying payments to Defendants Pinnacle and CompTech and without verifying compliance with BCSD Policy DJED…” Id. at ¶ 274. On October 11, 2012, BCSD paid Progressive $500,000.00 pursuant to BCSD Purchase Order No. 70-36372 for “Contract Services on Technology Infrastructure”. Id. at ¶ 60. Plaintiff contends that this payment was in direction violation of BCSD Board Policy DJED. Id. at ¶ 219(C). Thus, on October 11, 2012, Plaintiff was arguably injured as a result of the Progressive Defendants’ purported negligence in failing to ensure adherence to BCSD Board Policy DJED, making Plaintiff’s negligence claim sixty-five (65) days past the applicable four year statute of limitation. As such, Plaintiff’s negligence claim against the Progressive Defendants should be dismissed. B. Plaintiff’s Amended Complaint Fails to State a Claim for Breach of Contract and Fraud against the Progressive Defendants for Which Relief can be Granted. Plaintiff’s Amended Complaint asserts a breach of contract claim against the Progressive Defendants and asserts that such claim is brought “in the event that the Court finds that the Services Agreement is not void.” See Doc. 59, ¶ 239. The essence of Plaintiff’s breach of contract claim against the Progressive Defendants centers on both the September 24, 2012 Services Agreement, as well as the September 17, 2012 Contract Administration Plan, neither of which are attached as exhibits to Plaintiff’s Amended Complaint. Plaintiff first contends that “[t]he Services Agreement submitted by Defendant Progressive contained a significantly increased schedule for hourly rates for Case 5:16-cv-00549-MTT Document 70-1 Filed 05/01/17 Page 9 of 18 10 personnel than Defendant Progressive’s September 17, 2012 Contract Administration Plan.” Id. at ¶ 242. Plaintiff further argues that “[t]he Board was never advised of and never approved Defendant Progressive’s new schedule of hourly rates.” Id. Plaintiff also asserts that the Progressive Defendants were “bound by the Services Agreement and the representations contained in the Contract Administration Plan…” Id. at ¶ 244. Section 6.06 of the September 24, 2012 Services Agreement between Plaintiff and Progressive contains a merger clause which states: Section 6.06 - - Complete Agreement: This Agreement is the sole agreement between the parties relating to the subject matter of this Agreement and supersedes all proposals or prior agreements (oral or written) and all other communications between the parties relating to the subject matter of this Agreement. See attached Ex. “A”. The Services Agreement also contains a separate “assurance” paragraph which provides: Section 6.07 - - Assurances: Each party hereby represents and warrants that all representations, warranties, recitals, statements and information provided to each other under this Agreement are true, correct and accurate as of the date of this Agreement to the best of their knowledge. Id. Generally, “[a] party alleging fraudulent inducement to enter into a contract has two options: (1) affirm the contract and sue for breach; or (2) rescind the contract and sue in tort for fraud.” Jones v. Cartee, 277 Ga. App. 401, 402-403 (1997). In order to rescind a contract, “rescission must occur prior to, and as a condition precedent to, the bringing of an action; it is too late to claim rescission by asserting it for the first time in the pleadings.” Wender & Roberts, Inc. v. Wender, 238 Ga. App. 355, 361 (1999). Further, “if the defrauded party has not rescinded but has elected to affirm the Case 5:16-cv-00549-MTT Document 70-1 Filed 05/01/17 Page 10 of 18 11 contract, he is relegated to a recovery in contract and the merger clause will prevent his recovery.” Jones v. Cartee, 277 Ga. App. 401 at 403. Where a party is asserting a breach of contract claim, “[i]t is elementary that prior and contemporaneous statements or agreements cannot be shown to vary, contradict, or change the terms of a valid written contract purporting on its face to contain all the terms of an agreement between the parties.” Diamondhead Corp. v. Robinson, 144 Ga. App. 60, 61 (1977); See also O.C.G.A. § 24-3-1 (“Parol contemporaneous evidence shall be generally inadmissible to contradict or vary the terms of a valid written instrument.”) Here, Plaintiff has chosen to sue for both breach of contract and fraud. Looking solely to the four corners of Plaintiff’s Amended Complaint, Plaintiff fails to state a valid claim for breach of contract against the Progressive Defendants. Plaintiff cannot rely on a prior contemporaneous agreement to establish its breach of contract claim. The September 17, 2012 Contract Administration Plan has no bearing on what the Progressive Defendants assert is a valid and binding contract which was executed by both Plaintiff and Progressive. Further, Plaintiff has failed to promptly notify Progressive of its desire to rescind the Services Agreement and thus cannot subsequently sue in tort for fraud. It therefore follows that Plaintiff has affirmed the Services Agreement and the merger provision contained within the Agreement prevents Plaintiff’s recovery on its breach of contract claim against the Progressive Defendants. As such, Plaintiff’s breach of contract claim as to the Progressive Defendants must be dismissed. Case 5:16-cv-00549-MTT Document 70-1 Filed 05/01/17 Page 11 of 18 12 C. Count XI of Plaintiff’s Amended Complaint Must be Dismissed as Georgia Courts do not Recognize a Cause of Action for Inducing and Aiding Breach of Fiduciary Duty. Count XI of Plaintiff’s Amended Complaint attempts to hold the Progressive Defendants liable for “wrongfully, and without privilege intentionally collud[ing] and act[ing] to procure a breach of Defendant Dallemand’s fiduciary duty to BCSD and its Board.” (Doc. 59, ¶ 316). Importantly, Plaintiff distinguishes its claim of breach of fiduciary duty from inducing and aiding breach of fiduciary duty. Id. at ¶ 296-322.1 Little needs to be said in regards to this claim as Georgia courts do not recognize a cause of action for aiding, inducing and/or abetting breach of fiduciary duty. Official Committee of Unsecured Creditors of PSA, Inc. v. Edwards, 437 F.3d 1145, 1157 (2006); See also Matter of Munford, Inc., 98 F.3d 604, 613 (1996) (“we decline to extend aider and abettor liability to breaches of fiduciary duty concluding that Georgia courts would not recognize such a cause of action.”); Monroe v. Bd. of Regents of Univ. Sys. Of Ga., 268 Ga. App. 659, 664 (2004) (“Georgia has never recognized a claim for aiding and abetting a breach of fiduciary duty.”) As such, Count XI of Plaintiff’s Amended Complaint must be dismissed. 1 Plaintiff’s Amended Complaint includes two separate and distinct counts of Breach of Fiduciary Duty and Inducing and Aiding Breach of Fiduciary Duty. Specifically, Plaintiff’s Amended Complaint includes a claim of Breach of Fiduciary Duty as to Defendant Dallemand and a separate claim of Inducing and Aiding Breach of Fiduciary Duty as to Defendants Tourand, Progressive, Culver, CompTech, Stephen, Pinnacle and McFarlane. This clearly demonstrates that these two claims are not interchangeable. Case 5:16-cv-00549-MTT Document 70-1 Filed 05/01/17 Page 12 of 18 13 D. In the Alternative and as to any Claims Which this Court Believes are not Entitled to Dismissal or as to Those Claims Which are not Addressed in the Progressive Defendant’s Motion to Dismiss, the Progressive Defendants Move to Compel Such Claims to Arbitration. Plaintiff’s Amended Complaint contends that the Services Agreement between Plaintiff and the Progressive is void. Doc. 59, ¶ 56. However, Plaintiff concedes that on September 20, 2012, the Board voted to authorize BCSD to negotiate a contract with Progressive for Technical Management Project Services. Id. at ¶ 53. Plaintiff further concedes that on September 24, 2012, Defendant Dallemand, who was Superintendent of BCSD at the time, signed the Services Agreement with Defendant Progressive. Id. at ¶ 55. The Services Agreement was signed by Defendant Dallemand as an authorized representative of the BCSD. See Ex. “A”. The Agreement was also signed by Isaac J. Culver, III as President and Chief Executive Officer of Progressive Consulting Technologies, Inc. Id. Importantly, the Services Agreement contains an arbitration clause which provides that any and all controversies or claims arising out the Agreement must be submitted to arbitration. Id. When determining whether the parties agreed to arbitration “courts generally should apply ordinary state-law principles that govern the formation of contracts.” First Options of Chicago, Inc. v. Kaplan, 514 U.S. 938, 944 (1995). Under Georgia law, “[w]here contract language is unambiguous, no construction is necessary and the court must simply enforce the contract according to its clear terms.” Caswell v. Anderson, 241 Ga. App. 703, 705 (2000). Additionally, both the Federal Arbitration Act (“FAA”) and Georgia Arbitration Code (“GAC”) mandate a court to compel arbitration where the parties have entered into a valid and enforceable arbitration agreement. O.C.G.A. § 9-9-1, et seq.; 9 U.S.C. §§ 1, et seq. The FAA further provides that “as a matter of federal law, any doubts concerning the scope of arbitrable issues should be resolved in favor of Case 5:16-cv-00549-MTT Document 70-1 Filed 05/01/17 Page 13 of 18 14 arbitration.” Dasher v. RBC Bank (USA), 745 F.3d 1111, 1115 (11th Cir. 2014) (citing Moses H. Cone Mem’l Hosp. v. Mercury Constr. Corp., 460 U.S. 1 (1983)). Section 6.04 of the Services Agreement between Plaintiff and Progressive states as follows: Any controversy or claim arising out of or relating to this Agreement, or breach thereof, shall be settled by arbitration in accordance with the Arbitration Rules of the state of Georgia. Judgment upon the award rendered by the arbitrators may be entered in any court having jurisdiction thereof. Qualified Arbitrators shall be selected by the parties in accordance with the Arbitration Rules of the state of Georgia. Each party shall have the right of discovery set forth in the Federal Rules of Civil Procedure. The Arbitration shall be administered by mutually agreed upon third party. Ex. “A”, p. 3 (emphasis added). The claims asserted against the Progressive Defendants, as set forth in Plaintiff’s Amended Complaint, arise out of the September 24, 2012 Services Agreement between Plaintiff and Progressive. The arbitration provision in this Agreement was drafted broadly and contains no indication that the parties only meant for certain claims to be subject to arbitration. Further, there is nothing ambiguous about the language contained within Section 6.04 of the Services Agreement. Section 6.04 clearly and unambiguously states that any claim or controversy arising out of or relating to this Agreement or breach thereof shall be resolved through arbitration. Id. Additionally, nothing in the arbitration provision restricts its application to the parties to the agreement. See Price v. Ernst & Young, LLP, 274 Ga. App. 172, 174-175 (2005) (noting Plaintiff’s argument that the arbitration provision was limited to the parties was not supported by the arbitration agreement itself which stated the parties agreed “to submit any claim, demand, action, or cause of action arising under this agreement…to arbitration). Case 5:16-cv-00549-MTT Document 70-1 Filed 05/01/17 Page 14 of 18 15 Thus, the Progressive Defendants respectfully move this Court for an Order compelling arbitration as to each of Plaintiff’s claims in the event this Court determines such claims are not entitled to dismissal. IV. CONCLUSION For the foregoing reasons, Defendants Progressive Consulting Technologies, Inc. and Isaac Culver, III respectfully request that this Court dismiss Counts I, III, V, VIII, and XI of Plaintiff’s Amended Complaint. In the alternative, the Progressive Defendants respectfully request that this Court order each of Plaintiff’s claims to arbitration in accordance with Section 6.04 of the Services Agreement between Plaintiff and Progressive in the event this Court determines such claims are not entitled to dismissal. Respectfully submitted this 1st of May, 2017. Goodman McGuffey LLP Attorneys for Progressive Consulting Technologies, Inc., and Isaac Culver, III By: /s/ ELISSA B. HAYNES ROBERT A. LUSKIN GA State Bar No. 004383 rluskin@gmlj.com ELISSA B. HAYNES GA State Bar No. 804466 ehaynes@gmlj.com 3340 Peachtree Road NE, Suite 2100 Atlanta, GA 30326-1084 (404) 264-1500 Phone (404) 264-1737 Fax Case 5:16-cv-00549-MTT Document 70-1 Filed 05/01/17 Page 15 of 18 16 IN THE UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF GEORGIA MACON DIVISION BIBB COUNTY SCHOOL DISTRICT, Plaintiff, v. Civil Action File No.: 5:16-cv-00549-MTT ROMAIN DALLEMAND, THOMAS TOURAND, PROGRESSIVE CONSULTING TECHNOLOGIES, INC., ISAAC CULVER, III, COMPTECH COMPUTER TECHNOLOGIES, INC., ALLEN J. STEPHEN, III, PINNACLE/CSG, INC., and CORY MCFARLANE, Defendants. CERTIFICATE OF SERVICE This is to certify that I electronically filed this PROGRESSIVE CONSULTING TECHNOLOGIES, INC. AND ISAAC CULVER, III’S BRIEF IN SUPPORT OF THEIR 12(B)(6) MOTION TO DISMISS PLAINTIFF’S AMENDED COMPLAINT OR IN THE ALTERNATIVE, MOTION TO COMPEL ARBITRATION with the Clerk of Court using the CM/ECF system which will automatically send e-mail notification of such filing to the following attorneys of record: W. Warren Plowden, Jr., Esq. warren.plowden@jonescork.com Thomas W. Joyce, Esq. Tom.joyce@jonescork.com Brandon A. Oren, Esq. Brandon.oren@jonescork.com Jones Cork, LLP 435 Second Street PO Box 6437 Macon, GA 31208-6437 Counsel for Plaintiff Case 5:16-cv-00549-MTT Document 70-1 Filed 05/01/17 Page 16 of 18 17 Jerry A. Lumley, Esq. Lumley & Harper, LLC 6030 Lakeside Commons Drive Macon, GA 31210 jlumley@lumleyandharper.com Counsel for Plaintiff Jack L. McLean Jr., Esq. Mccl3690@comcast.net Jack L. McLean Jr. & Company LLC 1367 East Lafayette St., Ste. A Tallahassee, FL 32301 Counsel for Defendants Pinnacle/CSG, Inc. and Cory McFarland William H. Turner, Jr., Esq. Bill@turnerlawrence.com Turner & Lawrence, P.C. 423 S. Mulberry Street Jackson, GA 30233 Counsel for Defendant Thomas Tourand Richard W. Gerakitis, Esq. Richard.gerakitis@troutmansanders.com Lindsey B. Mann, Esq. Lindsey.mann@troutmansanders.com 5200 Bank of America Plaza 600 Peachtree Street NE Atlanta, GA 30308 Counsel for CompTech Computer Technologies, Inc. and Allen J. Stephen, III Timothy G. Pepper, Esq. pepper@taftlaw.com Taft Stettinius & Hollister, LLP 40 North Main St., Ste. 1700 Dayton, OH 45423-1029 Counsel for CompTech Computer Technologies, Inc. and Allen J. Stephen, III Larry K. White, Esq. larrykwhite@lkwlaw.net Larry K. White LLC 1367 E. Lafayette Street, Suite A Tallahassee, FL 32301 Counsel for Romain Dallemand Case 5:16-cv-00549-MTT Document 70-1 Filed 05/01/17 Page 17 of 18 18 This 1st day of May, 2017. /s/ ELISSA B. HAYNES ELISSA B. HAYNES GA State Bar No. 804466 ehaynes@gmlj.com Goodman McGuffey LLP 3340 Peachtree Road NE, Suite 2100 Atlanta, GA 30326-1084 (404) 264-1500 Phone (404) 264-1737 Fax 2224-0268/Doc ID #4342212 Case 5:16-cv-00549-MTT Document 70-1 Filed 05/01/17 Page 18 of 18 EXHIBIT “A” Case 5:16-cv-00549-MTT Document 70-2 Filed 05/01/17 Page 1 of 12 items set forth in Exhibit D as a condition precedent to the obligations of Corporation hereunder SERVICES AGREEMENT THIS SERVICES AGREEMENT ("Agreement") Section 1.09 - Acceptance of Services: Services shall be deemed delivered by Corporation and accepted by Customer upon performance. The Contract is made as ofSept 21. 2012 ("Effective Date") by and between Bibb County School District with offices located at 484 Mulberry Street. Macon. GA. 31201 ("Customed'') and Progressive Consulting Technologies. Inc. with offices located at 971 Washington Avenue. Macon. GA 31201 ("Corporation"). § ARTICLE II; PAYMENTS AND FEE: Section 2.01 - Labor Rates: Article II shall be performed on a time-and-materials/labor- hour basis at the hourly labor rates set forth in Exhibit E, attached hereto and by this reference made a part hereof. The services described in W I T N E S S E T H WHEREAS, Corporation is in the business of Project Management and IT Services; and Section 2.02 - Material Costs: Non-labor expenses incurred by Corporation in performing the services described under Article II shall be reimbursed by Customer at actual cost plus fifteen percent. Such non-labor expenses shall include (but not be limited to) all travel, equipment, and material costs incurred by Corporation in performing the services described in Article II. WHEREAS, Customer desires Corporation to provide technical project management services to Customer. NOW, THEREFORE, in consideration of the mutual benefits of the covenants set forth below, Customer and Corporation hereby agree as follows: Section 2.03 - Invoices: Corporation shall submit invoices for services rendered and costs incurred during a tasking period by the fifteenth day and the twenty-ninth day of the month in which such services were rendered. Customer shall pay such invoice within 30 days of the invoice date. ARTICLE I; SCOPE OF WORI £ Section 1.01 - Recitals: The above identification of parties and recitals are true and correct. Section 2.04 - Late Charges: Any invoiced amount which is not paid by Customer as provided herein shall be increased by a late charge equal to 1-1/2% for each month (or portion thereof) in which such invoiced amount is not paid. Notwithstanding any provision or interpretation to the contrary. Customer failure to pay an invoice by the end of the following month in which such invoice was received by Customer shall constitute a material breach of this Agreement and shall be sufficient cause for the immediate termination of this Agreement by Corporation. Section 1.02 - Scope of Work: Corporation shall perform the services described in Exhibit A which is incorporated herein by this reference ("Contract Services"), services include development of the deliverables listed in Exhibit B ("Deliverables"). Such Section 1.03 - Management Reporting: Corporation shall provide Customer with periodic reports as warranted by the progress of work. Section 1.04 - Personnel: The personnel assigned to perform the Contract Services shall be determined solely by Corporation. Section 2.05 - Insurance: Customer and Corporation shall each maintain at their own expense all necessary insurance, including but not limited to, workmen's compensation, disability, and unemployment insurance as well as public liability, product liability, property damage, and automobile liability insurance against all losses, claims, demands, proceedings, damages, costs, charges and expenses for injuries or damage to any person or property arising out of or in connection with this Agreement which are the result of the fault or negligence of such party. Each party shall provide the other party with certification of such insurance upon request. Section 1.05 - Term: This Agreement shall extend from the Effective Date to September 30. 2013. The estimated period of performance of the Contract Services shall be as set forth in Exhibit C. Section 1.06 - Cooperation: acknowledges that successful performance of the services described under this Article I by Corporation shall require Customer to cooperate with Corporation in good faith and to provide information as may be requested by Corporation from time to time. Customer hereby agrees to provide such good faith cooperation and information. Customer hereby Section 2.06 - Taxes: Customer shall be responsible for the payment of all taxes based upon the Contract Services performed or the Deliverables developed pursuant to this Agreement, except taxes based upon the income of Corporation. Customer shall indemnify Corporation and hold Corporation harmless from any sales, excise or use tax or taxes in lieu thereof including any interest and penalties (except taxes based upon income earned by Corporation pursuant to this Agreement) which way be imposed by any Section 1.07 - Facilities: Exhibit A, the services of Corporation shall be performed at the office facilities of Corporation and the Customer. Unless otherwise set forth in Section 1.08 - Customer Responsibilities: Customer shall be responsible for performing the tasks and providing the FRM 157 V2 Case 5:16-cv-00549-MTT Document 70-2 Filed 05/01/17 Page 2 of 12 governmental authority upon any use, distribution or sublicensing of the Deliverables. Section 4.01 - Warranty: Corporation hereby represents and warrants that the Contract Services shall be performed on a best efforts basis by qualified personnel. ARTICLE 111: INTELLECTUAL PROPERTY SECTION 4.02 - WARRANTY LIMITATION: THE WARRANTY SET FORTH IN SECTION 4.01 IS A LIMITED WARRANTY AND IS THE ONLY WARRANTY MADE BY CORPORATION UNDER THIS AGREEMENT. WARRANTY MADE BY CORPORATION IN SECTION 4.01, CORPORATION HEREBY DISCLAIMS, AND CUSTOMER HEREBY WAIVES, ALL OTHER WARRANTIES EXPRESSED OR IMPLIED, INCLUDING, WITHOUT LIMITATION, IMPLIED MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. Customer shall not Section 3.01 - Confidentiality, disclose the Confidential Information of Corporation without the prior written consent of Corporation, except to employees and consultants of Customer requiring such Confidential Information for purposes of performing this Agreement. The term. "Confidential Information" shall mean all information which is not in the public domain, comes into the possession or knowledge of Customer or Corporation in connection with this Agreement and is clearly marked as proprietary or confidential at the time such information comes into the possession or knowledge of Customer or Corporation. The terms of this Section 3.01 shall survive termination of this Agreement. EXCEPT FOR THE WARRANTIES ALL OF Limitation of Damages: Corporation shall not be liable to Customer under this Agreement for any consequential, exemplary, incidental or punitive damages, regardless of whether Corporation has been advised of the possibility of such damages in advance or whether such damages are reasonably foreseeable. Notwithstanding any provision to the contrary, the liability of Corporation for any reason and for any cause of action whatsoever under this Agreement shall be limited to the amount of money received by Corporation pursuant to this Agreement. Section 4.03 Customer and Section 3.02 - Rights to New Ideas: Corporation hereby acknowledge that the services to be provided under this Agreement by Corporation may result in the development of proprietary and secret information, materials, concepts, applications, technologies, systems, solutions, techniques, methods, processes, adaptions and ideas ("Proprietary Information"). Customer hereby agrees that such Proprietary Information shall belong solely and exclusively to Corporation, without regard to the origin thereof, and that Customer shall not disclose such Proprietary Information except for purposes of performing this Agreement. Section 4.04 - Force Majeure: Corporation shall be not liable to Customer for failing to perform its obligations under this Agreement because of circumstances beyond the control of Corporation. Such circumstances shall include, but not be limited to, any acts or omissions of any government or governmental authority, natural disaster, act of a public enemy, acts of terrorism, riot, sabotage, disputes or differences with workmen, power failure, delays in transportation or deliveries of supplies or materials, acts of God, or any events reasonably beyond the control of Corporation. Section 3.03 - Intellectual Property Rights: hereby agrees that the Deliverables and all materials incidental thereto developed by Corporation under this Agreement shall be the sole and exclusive property of Corporation, and that Corporation shall own all of the rights, title and interests to such Deliverables, including (but not limited to) any and all copyrights, patents, trademarks and trade secrets related to the Deliverables. Customer hereby agrees to cooperate with Corporation in securing or registering any such rights. Customer Section 4.05 - Indemnification: Customer shall indemnify, defend and hold Corporation harmless against any liability arising from or in connection with any use of the Deliverables by Customer or performance of the Contract Services. This Section 4.05 shall survive termination of this Agreement. Section 3.04 -- Employee Pirating: Each party shall not induce or solicit (directly or indirectly) any employee of the other party to leave the employ of such other party or engage the services of such employee (as an employer or otherwise) without the prior written consent of such other party. This Section 3.04 shall survive termination of this Agreement. Section 4.06 - Original Development: Corporation hereby represents and warrants that the Deliverables shall be originally developed by Corporation. Section 3.05 -- Publication: provision to the contrary hereunder, Corporation shall have the right to publish in professional journals and to present to the United States Government, contractors and subcontractors of the United States Government, and members of the community at large the results of the Contract Services and any Proprietary Information or Confidential Information resulting therefrom. Notwithstanding any IS ARTICLE V: TERMINATIOl Section 5.01 - Termination Limitation: This Agreement shall only be terminated as provided under this Article V. Section 5.02 - Right of Termination: Either party may terminate this Agreement upon providing sixty days Termination Notice to the other party. s ARTICLE IV: WARRANT 2 FRM 157 V2 Case 5:16-cv-00549-MTT Document 70-2 Filed 05/01/17 Page 3 of 12 performing the obligations of Customer under this Agreement shall be Section 5.03 -- Termination for Cause: If a party violates its obligations under this Agreement, the other party may terminate the Agreement by sending Termination Notice describing the noncompliance to the other party. Upon receiving Termination Notice describing the noncompliance, the noncomplying party shall have five days from the date of such notice to either cure any such noncompliance or, if the noncompliance cannot be cured within such five day period, to begin curing such noncompliance in good faith. If such noncompliance is not cured within the required five day period, or, if the noncompliance cannot be cured within such five day period, the noncomplying party does not make a good faith effort to begin curing such noncompliance within said five day period, the party providing Termination Notice describing the noncompliance shaii have the right to terminate this Agreement as of the fifteenth day after the date of the Termination Notice, Any controversy or claim Section 6.04 -- Arbitration: arising out of or relating to this Agreement, or breach thereof, shall be settled by arbitration in accordance with the Arbitration Rules of the state of Georgia Judgment upon the award rendered by the arbitrators may be entered in any court having jurisdiction thereof. Qualified Arbitrators shall be selected by the parties in accordance with the Arbitration Rules of the state of Georgia. Each party shall have the right of discovery as set forth in the Federal Rules of Civil Procedure. The Arbitration shall be administered by mutually agreed upon third party. Section 6.05 -- Assignment: Assignments of rights hereunder without the prior written consent of Corporation shall be void. Section 6.06 -- Complete Agreement: This Agreement is the sole agreement between the parties relating to the subject matter of this Agreement and supersedes all proposals or prior agreements (oral or written) and all other communications between the parties relating to the subject matter of this Agreement. Section 5.04 - Early Termination: If Corporation terminates service for nonpayment or other default before the end of the Service Commitment, or if Customer terminates service for any reason other than (a) in accordance with the cancellation policy; or (b) pursuant to a change of terms, conditions or rates as set forth below, customer agrees to pay us with respect to each project managed, in addition to all other amounts owed, an Early Termination Fee in the amount of 10% of project price will also be assessed. Section 6.07 -- Assurances: Each party hereby represents and warrants that all representations, warranties, recitals, statements and information provided to each other under this Agreement are true, correct and accurate as of the date of this Agreement to the best of their knowledge. Section 5.05 -- Return of Materials: Upon the termination of this Agreement, Customer shall return to Corporation any and all Deliverables and materials incident thereto which are in the possession of Customer or located at the facilities or premises of Customer as of the date of Termination Notice. Section 6.08 -- Amendments and Modifications: A waiver, alteration, modification or amendment of this Agreement shall be void unless such waiver, alteration, modification or amendment is in writing and signed by the respective parties hereto. g ARTICLE VI: MISCELLANEOU: Section 6,09 -- Severability: Agreement is rendered invalid the remaining provisions shall remain in full force and effect. If a provision of this Section 6,01 -- News Releases/Public Announcements: Customer shall not make any public announcements or issue any news releases containing references to this Agreement, the Contract Services, the Deliverables or the working relationship of the Customer and Corporation under this Agreement without the prior written consent and authorization of Corporation, Section 6,10 -- Captions: The headings and captions of this Agreement are inserted for convenience of reference and do not define, limit or describe the scope or intent of this Agreement or any particular section, paragraph, or provision. Section 6,02 -- Relationship of the Parties: It is agreed that the relationship of the parties is primarily that of Corporation as developer and Customer as distributor. Nothing herein shall be construed as creating partnership, employment relationship, or agency relationship between the parties, or as authorizing either party to act as agent for the other. Each party maintains its separate identity. Section 6,11 -- Counterparts: This Agreement may be executed in multiple counterparts, each of which shall be deemed an original, but all of which together shall constitute one and the same instrument. Section 6.12 -- Governing Law: This Agreement shall be governed by the laws of the State of Georgia, Section 6,03 -- Representatives: The authorized representative of Corporation for purposes of performing the obligations of Corporation under this Agreement shall be Isaac J, Culver. Ill and Dave L, Cartv, authorized representative of Customer for purposes of Section 6,13 -- Notice: All communications shall be in writing and shall be delivered by Certified Mail or by hand to the address set forth below for each respective party: The 3 FRM 157 V2 Case 5:16-cv-00549-MTT Document 70-2 Filed 05/01/17 Page 4 of 12 Customer Bibb County School District 484 Mulberry Street Macon GA31201 IN WITNESS WHEREOF, this Agreement has been executed as of the Effective Date. CUSTOMER: Corporation Progressive Consulting Technologies, Inc. 971 Washington Avenue Macon, GA 31201 Bibb County Schooj/pistrict a_ Notice shall be effective upon receipt. By: Authorized Repiesentative- Pronouns shall refer to Date: > WITNESS: Section 6.14 -- Pronouns/Gender: the masculine, feminine, singular or plural as the context shall require. 1 C « i Waiver of a breach of this Section 6.15 -- Waiver: Agreement shall not constitute a waiver of any other breach. Failure to enforce any provision of this Agreement shall not constitute a waiver or create an estoppel from enforcing such provisions. CORPORATION: [Progressive Consulting Technologies, Inc.] By:. Isaac J.-Culver, III - Pres./CEO t ̂ Date: WITNESS: 4 FRM 157 V2 Case 5:16-cv-00549-MTT Document 70-2 Filed 05/01/17 Page 5 of 12 EXHIBIT A CONTRACT SERVICES Date: 09-24-2012 Progressive Consulting Technologies, Inc. 971 Washington Avenue Macon, GA 31201 Customer: The Bibb County School District 484 Mulberry Street Macon. GA 31201 CONTRACT SERVICES Contract Services shall mean the following: Whereas, Customer has previously requested, pursuant to Exhibit A, certain technical project management services and desires to engage Progressive Consulting on the terms and conditions set forth herein, to perform such services. Unless otherwise set forth in this Exhibit A, the Contract Services shall be performed at the office facilities of Progressive Consulting Technologies, Inc. and the Customer. Customer: Progressive Consulting Technologies, Inc. The Bibb County School District i l u ^ 11-By: By: yCjilver, III - Pres./CEO Isaac J. Authorized Representative Case 5:16-cv-00549-MTT Document 70-2 Filed 05/01/17 Page 6 of 12 EXHIBIT B DELIVERABLES Date: 09-24-2012 Progressive Consulting Technologies, Inc. 971 Washington Avenue Macon, GA 31201 Customer; The Bibb County School District 484 Mulberry Street Macon. GA 31201 DELIVERABLES Deliverables shall mean the following; • Install, relocate, configure, modify and test routers, switches and servers. • Troubleshoot renovation design of wiring, wireless, access, and linkage problems. • Support diagnostics and configuration connectivity of specific servers and entire BCSD network(s). • Collect Performance Measurement information, work progress, delays or deadline slippages, and generate weekly reports on same. • Assist with BCSD infrastructure deployments and technical hardware refresh, renovation, and transition initiatives. Submit a schedule indicating the projected date(s) when each piece of equipment will be installed, and or each data set, application, or operating system is transitioned. • Participate in long-range BCSD system-wide and site-by-site technical infrastructure planning and technical architecture design, renovations, and upgrades. • Develop, plan and maintain documentation necessary for system operations in support of all LAN, WLAN, and VLAN to WAN connectivity. • Define and recommend minimum standards, as applies to network operations, systems operations, system backup and disaster recovery solutions, bandwidth and access to the Internet; and their impact on overall network resourcing and operations. • Oversee the integration of network hardware and software platforms for WAN/LAN and all BCSD network connected systems. • Evaluate and recommend new and evolving networking technologies. A visit to the Case 5:16-cv-00549-MTT Document 70-2 Filed 05/01/17 Page 7 of 12 sites, so that your firm may become familiar with the local conditions and correlate observable conditions in regards to the requirements of the program, schedule and budget • Management of the site and coordination of all construction activities by a full-time Technical Project Manager who shall remain on-site continuously during all technical construction activities. Customer: Progressive Consulting Technologies, Inc. The Bibb County School District /quiver, III - Pres./CEO By: By: Authorized Representative Isaac J. s jnoq £ -3 inoqe jo j Smujow ; e s uo SDLyo asuaon § u! >po |q LJUM a ns s j IOQBD "S ;o| §u!>|jed xnqnd pio (i,)J9UMo LU04 uoissjauad •y ;o| Sui^jed jo asn J O^ 3g3H LU04 uojssiujjaci •£ ;o| Suited i o ssn J O j A; uno3 uo; snoH 0104 uoissjauad ' Z ;o-| §U!>jjBd io asn joj ;u!|d UJ04 uoissjauad ' I sanssi Case 5:16-cv-00549-MTT Document 70-2 Filed 05/01/17 Page 8 of 12 EXHIBIT C COMPLETION DATE Date: 09-24-2012 Progressive Consulting Technologies Inc. 971 Washington Avenue Macon, GA 31201 Customer: The Bibb County School District 484 Mulberry Street Macon. GA 31201 COMPLETION DATE The estimated date of completion of Contract Services (Exhibit A) including the development of Deliverables (Exhibit B) shall be June 30. 2013. Customer: Progressive ConsultiOT^cgTgdlM^l0^JUJOm 9nss! iOQBD A 10| p}q(dj-JSUMj/UJOJJ lioja& i L U j a / - p By: ioi Suited jA^hodg^tiiS^aeptKqsnt^iiii®^ uoissiauad z i o n S u ^ j e d j o s s n J G ^ i u j | j L U O J J u o j s s i u j j a d - j By; " J ' --J Isaac J. jCuJVer, III - Pres./CEO sgnssi Case 5:16-cv-00549-MTT Document 70-2 Filed 05/01/17 Page 9 of 12 EXHIBIT D CUSTOMER RESPONSIBILITIES Date: 09-24-2012 Progressive Consulting Technologies Inc. 971 Washington Avenue Macon, GA 31201 Customer: The Bibb County School District 484 Mulberry Street Macon. GA 31201 CUSTOMER RESPONSIBILITIES Customer Responsibilities shall mean the following: All hardware and software components shall be provided by the Bibb County School District. Customer shall be responsible for performing the tasks and providing the items set forth in Exhibit D as a condition precedent to the obligations of Corporation hereunder. Customer: Progressive Consult-itfm^d[^gi0^!UJOBiWg Ml'M anssj IOQB 9 > A i jo| Sui^J^xijqn/pio^ s u M Q /jojj udiss/ujad J f By: 4̂Q-s^i-JQ-T^UH yujver, III - Pres./CEO jo| Su^jed ̂ ^hQdjz^fepteQsnb^iwiOJj uoissjouad z joi §u!>|jed io asn JO^ jujid UJOJ^ uojssjLUJSd •"[ By:. Isaac J. sanssi Case 5:16-cv-00549-MTT Document 70-2 Filed 05/01/17 Page 10 of 12 EXHIBIT E FEE SCHEDULE Date: 09-24-2012 Progressive Consulting Technologies, Inc. 971 Washington Avenue Macon, GA 31201 Customer: The Bibb County School District 484 Mulberry Street. Macon. GA. 31201 Macon. GA 31201 FEE SCHEDULE Progressive shall invoice the customer monthly for fees (in accordance with Section 2). Receipts evidencing all cost shall accompany such invoices. Customer shall pay such invoice by the end of the month in which the invoice is received. The Bibb County School District has agreed to extend a services contract to Progressive Consulting Technologies, Inc. Negotiated Addendum Within Proposal Proposed Fees and Hourly Rates Additional Positions not previously indicated Program Manager Senior Consultant/ Principal Technology Consultant Project Manager 95 175 Senior Technology Consultant 50 90 Senior Project Manager 75 150 Senior Network Engineer Senior Multimedia Engineer Senior Telecommunication Engineer Network Engineer 65 140 Muttimedia Engineer Telecommunications 50 90 50 125 Engineer Senior Camera/Surveillance Engineer Camera/Surveillance 40 75 Engineer Consultant 60 Wireless Specialist 89 CAD/Drawings Support Administrative Support 40 Virtualization Specialist 145 Desktop Support Manager - help desk type support 35 75 Case 5:16-cv-00549-MTT Document 70-2 Filed 05/01/17 Page 11 of 12 Issues 1. Permission from Flint for use of Parking Lot 2. Permission from Houston County for use of Parking lot 3. Permission from HCBE for use of Parking lot 4. Permission from owner(?) Old Publix parking lot 5. 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