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HomeMy WebLinkAboutEconomic Development and Financing Corporation (EDFC) 2009-02-19PERFORMANCE AGREEMENT between the UKIAH REDEVELOPMENT AGENCY and the ECONOMIC DEVELOPMENT AND FINANCE CORPORATON This Agreement is made and entered on February 10, 2009, by and between the Ukiah Redevelopment Agency, a redevelopment agency for the City of Ukiah, herein called "Agency," and the Economic Development Finance Corporation (EDFC), a California not-for-profit corporation formed pursuant to and in compliance with the laws of the State of California, herein called "EDFC." Individually, Agency and City may be referred to in this Agreement as a "Party," and collectively as "the Parties." RECITALS 1. The Agency is desirous of creating a vital economic development climate through the promotion of locally owned and operated small businesses. 2. EDFC is organized to provide assistance to individuals and small businesses which want to start or expand businesses in the City of Ukiah and throughout Mendocino County, and has expertise in developing business plans and securing financing for the creation and expansion of small businesses and to otherwise assist in the development and expansion of small businesses. NOW, THEREFORE, in consideration of the above-recited facts and terms and conditions stated below, the Parties agree as follows: A. TERM This Agreement shall be effective from July 1, 2008 and shall terminate on June 30, 2009 B. SCOPE OF SERVICES EDFC shall perform the Scope of Services set forth in Attachment 1. D. RECORDS. REPORTS AND ACCOUNTABILITY EDFC shall maintain a bookkeeping system and books of account in accordance with generally accepted accounting principles consistently applied, which outline the accounting and utilization of Agency funds paid. to the EDFC for services defined in this agreement. Agency shall have access to said books of account during regular business hours for purposes of inspection and audit. EDFC shall fully cooperate with the Agency and its agents and accountants during any such inspection and audit, including, but not limited to, making its employees, accountants, bookkeepers, or officials available to provide any requested information or documents. As stated in Attachment 1, EDFC shall furnish quarterly reports on its activities and services by September 1, 2008, December 1, 2008, and April 1, 2009, and a combined quarterly report and a detailed annual financial report by June 1, 2009, covering the performance of the Scope of Work as set forth in Attachment 1. E. FINANCIAL COMPENSATION BY AGENCY In consideration of the EDFC's performance of the above services, and under the terms of this Agreement, the Agency shall pay the EDFC the sum of Ten Thousand Dollars ($10,000) in order for the EDFC to accomplish the specific scope of work identified in Attachment 1. This sum of money shall constitute the entirety of Agency's financial contribution to the EDFC during the effective dates of this Agreement. The compensation provided in this paragraph E shall be paid to EDFC in installments as follows: Terms of Payment. Payment to EDFC, for services rendered in accordance with this contract shall be based upon submission of quarterly invoices for the work satisfactorily performed prior to the date of the invoice, which amounts shall be due and payable thirty (30) days after receipt by the Agency. The invoices shall be accompanied with a description of each item of work performed. Invoices shall be accompanied by documentation sufficient to enable the Agency to determine progress made. F. INSURANCE AND INDEMNIFICATION During the term of this Agreement, the EDFC agrees to indemnify and hold harmless the Agency, its officers, agents, and employees from and against any and all claims, losses, defense costs, or liability of any kind or nature which the Agency, its officers, agents, and employees may sustain or incur or which may be imposed upon them for injury to or death of persons, or damage to property as a result of, arising out of, or in any manner connected with the EDFC's performance under the terms of this Agreement, excepting only liability arising out of the sole and active negligence of the Agency. Without limiting the EDFC's indemnification, it is agreed that the EDFC shall maintain in force at all times during the performance of this Agreement, the following policy or policies of insurance approved by the Agency and issued by admitted California insurers approved by the Agency covering its operations: 1. Comprehensive General Liability, including contractual liability, products, and completed operations and business automotive liability, all of which shall include coverage for both bodily injury and property damage with a combined single limit of One Million Dollars ($1,000,000). 2. Worker's Compensation coverage at statutory limits. The certificates of insurance and endorsements shall be completed to the satisfaction of the Agency. Should the EDFC fail to comply with this paragraph then, the Agency shall have the right to immediately terminate this Agreement without further notice to EDFC. G. RELATIONSHIP BETWEEN EDFC AND AGENCY Nothing in this Agreement shall be construed as making the EDFC or any of its employees or representatives, the agent or employee of the Agency for any purpose, or any employee of the Agency an employee of the EDFC or creating between the Agency and the EDFC the relationship of legal partners or joint ventures. It is understood that the contractual relationship of the EDFC to the City is that of an independent contractor. The key contact person involved in the implementation and administration of this Agreement with EDFC will be Don Ballek, Executive Director of EDFC. The key contact person for City of Ukiah will be Cathleen Moller, Economic Development Manager. H. TERMINATION FOR NON-PERFORMANCE If any Party to this Agreement breaches any provision thereof, then the other Party may give the defaulting Party a notice to remedy such violation within thirty (30) days. The other Party may terminate the Agreement: (a) if such violation is not remedied within said 30 days; or (b) if the breach cannot be remedied within such time period. Should this contract be terminated for breach on the part of the EDFC, in addition to any other remedies or compensation to which the Agency may be entitled, EDFC shall not be entitled to any further installment payments not yet paid at the time of breach. A waiver by either Party of performance of any provision of this Agreement shall not amount to a future waiver of the strict performance of such provisions or of any other provision of this Agreement. 1. NON-PERFORMANCE DUE TO CONDITION BEYOND CONTROL OF PARTIES If either Party is unable to perform its obligations under this Agreement due to conditions beyond its reasonable control, such as, but not limited to, changes in local, state, or federal laws or regulations arising form legislative changes, judicial interpretations of existing law, vote by the citizens of Ukiah, or administrative action, and not due to the fault or neglect of any Party, such failure to perform shall not be deemed a violation of this Agreement provided the Party whose performance is so prevented performs its obligation as soon as practicable after the occurrence of the event preventing performance under this Agreement. Such Party shall use reasonable diligence to put itself again in a position to carry out its obligations hereunder, and in the event such Party does not or cannot within a reasonable time put itself again in a position to do so, the other Party may, at its option, terminate this Agreement. J. MISCELLANEOUS PROVISIONS 1. WAIVER OR MODIFICATION INEFFECTIVE UNLESS IN WRITING No waiver or modification of the Agreement or of any covenant, condition, or limitations herein contained shall be valid unless in writing and duly executed by the Party to be charged therewith. Furthermore, no evidence of any waiver or modification shall be offered or received in evidence in a proceeding, arbitration, or litigation between the parties arising out of or affecting this Agreement, or the rights or obligations of any Party hereunder, unless such waiver or modification is in writing and duly executed. The provisions of this paragraph may not be waived, except as herein set forth. 2. SEVERABILITY In the event any section, subsection, provision, or clause of this Agreement or any combination thereof is found to be unenforceable at law, inequity, or under any presently existing or hereafter enacted legislation, regulation, or order of the United States, any state or subdivision thereof or any municipality, those findings shall not in anyway affect the other sections, subsections, provisions, or clauses of this Agreement, which shall continue in full force and effect, and the unenforceable provisions shall be interpreted in a manner that imposes the maximum restriction or obligation permitted by applicable law. Every provision of this Agreement is intended to be severable. If any term or provision hereof is illegal or invalid for any reason whatsoever, such illegality or invalidity shall not affect the validity of the remainder of the Agreement. 3. NOTICE Whenever notice is permitted or required by this Agreement, it shall be deemed given when deposited in the U.S. Mail with proper first class postage affixed thereto and addressed or personally delivered to: Ukiah Redevelopment Agency Economic Development Finance Corporation Attention: Executive Director Attn: Executive Director 300 Seminary Ave. 631 S. Orchard Ave. Ukiah, CA 95482 Ukiah, CA. 95482 4. DUPLICATE ORIGINALS This Agreement may be executed in one or more duplicate originals each bearing the original signatures of the parties. When so executed, each such duplicate original shall be admissible to establish the existence and terms of this Agreement. 5. AUTHORITY The parties hereto acknowledge that they have the authority to execute this Agreement on behalf of the entity that they represent as herein set forth below. 6. GOVERNING LAW AND JURISDICTION The interpretation and enforcement of this Agreement shall be governed by the laws of the State of California. All legal actions arising under this Agreement shall be filed in the California state courts in Mendocino County which shall have jurisdiction and venue over any such actions or proceedings. 7. ENTIRE AGREEMENT This Agreement supersedes any and all other agreements, either, oral or in writing, between the parties hereto with respect to the terms and conditions contained herein, and contains all of the covenants and agreements between the parties with respect to this Agreement in any manner whatsoever. Each Party to this agreement acknowledges that no representations, inducements, promises, or agreements, orally or otherwise, have been made by any Party, or anyone acting on behalf of any Party, which are not embodied herein, and that no other agreements, statement, or promise not contained in this agreement shall be valid or binding. 8. PLAIN MEANING This Agreement shall be interpreted in accordance with its plain meaning, neither for nor against any Party. 9. HEADINGS AND CONTEXT The headings of this Agreement are inserted for convenience only and do not define, limit or extend the scope or intent of this agreement or any provision thereof. When the context permits, a word or phrase used in the singular means the plural and when used in any gender, its meaning also includes all genders. 10. MERGER This Agreement constitutes the entire understanding between the parties as to the terms and conditions contained herein, all previous understandings being merged herein. 11. ADEQUATE ASSURANCES Each Party shall execute, acknowledge and deliver such additional documents, writings or assurances as the other may periodically require so as to give full force and effect to the terms and provisions of this Agreement. 12. CONSTRUCTION OF AGREEMENT This Agreement has been reviewed by separate counsel for both parties. Any ambiguity existing in this Agreement shall not be construed against either Party as the drafter of this Agreement. 13. TIME Time is of the essence of this Agreement. Acknowledgement: IN WITNESS WHEREOF, this Agreement is executed by the Ukiah Redevelopment Agency and the EDFC, by their duly authorized representatives, on the Effective Date. BY SIGNATURE HEREUNDER, THE PARTIES ACKNOWLEDGE THAT THEY HAVE THE AUTHORITY TO BIND THE ORGANIZATION ON WHOSE BEHALF THEY EXECUTE THIS DOCUMENT; READ THIS ENTIRE AGREEMENT; HAVE A CLEAR UNDERSTANDING OF THE OBLIGATIONS, RIGHTS, DUTIES, AND LIABILITIES WHICH ARISE AS A RESULT OF THEIR EXECUTION BELOW; AND ARE IN RECEIPT OF A COPY HEREOF. UKIAH REDEVELOPMENT AGENCY ECONOMIC DEVELOPMENT FINANCE CORPORATION By: Jane Chambers, Executive Director By: Don Ballek, Executive Director ATTACHMENT 1 ECONOMIC DEVELOPMENT FINANCIAL CORPORATION SCOPE OF SERVICES Contractor shall provide the following services: 1. To assist local businesses within the City of Ukiah in locating sources of loan funds, grants, private and public capital, and venture capital funds. a) Organize and facilitate an annual forum on Capital Investment Resources. 2. Work in cooperation with the Economic Development Manager assisting with the coordination of economic development activities that encourage job retention, business expansion and business relocation within and to the City of Ukiah by coordinating activities with the Workforce Investment Board (WIB), MPIC Inc., West Company, Mendocino Small Development Center and SCORE. a) Provide information to start-ups and/or established businesses interested in obtaining financing on: • Resources to develop or update a business plan • Resources on recruiting employees. • Resources on laying off employees • Educational and training resources and opportunities 3. To encourage a cooperative focus on economic development activities between the City of Ukiah, Mendocino County and all other Cities in Mendocino County. a) Organize and Coordinate Mendo Green, a discussion group whose focus is the development of green technology and economic development in the City of Ukiah and in Mendocino County. b) Set up and maintain a Base Camp email account to facilitate communication of the group. c) Coordinate and facilitate Mendo Green meetings. d) Serve on the T.O.T. Task Force in promoting tourism and attracting tourists to the City of Ukiah. 4. Assist the City during the term of this agreement with support and coordination as needed for economic development. a) Set-up and maintain a Base Camp email account for the Green Works discussion group. 5. Provide detailed quarterly reports to the City regarding activities and services provided. 6. Provide a detailed annual report to the City regarding activities and services provided. 7 Acknowledgement: IN WITNESS WHEREOF, this Agreement is executed by the Ukiah Redevelopment Agency and the EDFC, by their duly authorized representatives, on the Effective Date. , BY SIGNATURE HEREUNDER, THE PARTIES ACKNOWLEDGE THAT THEY HAVE THE AUTHORITY TO BIND THE ORGANIZATION ON WHOSE BEHALF THEY EXECUTE THIS DOCUMENT; READ THIS ENTIRE AGREEMENT; HAVE A CLEAR UNDERSTANDING OF THE OBLIGATIONS, RIGHTS, DUTIES, AND LIABILITIES WHICH ARISE AS A RESULT OF THEIR EXECUTION BELOW; AND ARE IN. RECEIPT OF A COPY HEREOF. UKIAH REDEVELOPMENT AGENCY ECONOMIC PEVELOPMENT FINANCE R O N By: By: J e Chambers, Executive Director Don al ek, Executive Director 6