HomeMy WebLinkAboutEconomic Development and Financing Corporation (EDFC) 2012-07-18 � ' �7�8/�-
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PERFORMANCE AGREEMENT
between the I
CITY OF UKIAH
and the
ECONOMIC DEVELOPMENT AND FINANCING CORPORATON
This Agreement is made and entered on July 18, 2012 between the City of Ukiah, a
California general law municipal corporation, herein called "City," and the Economic
Development and Financing 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, EDFC and City may be referred to in this Agreement as a "Party," and collectively
as "the Parties."
RECITALS
1. The City 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 business owners by
coordinating economic development activities in Mendocino County and in particular, the City of
Ukiah, for the purpose of creating, expanding or retaining businesses. EDFC has expertise in
economic development and in securing financing in the form of loans, grants, capital and
venture capital funding, to assist with the development, expansion and/or retention of
businesses.
NqW, 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, 2012 and shall terminate on June 30, 2013.
B. SCOPE OF SERVICES
EDFC shall perform the Scope of Services set forth in Exhibit A.
C. RECORDS, REPORTS AND ACCOUNTABILITY
EDFC shall maintain a bookkeeping system and books of account in accordance with generally
accepted accounting principles consistently applied, which includes an accounting of City funds
paid to the EDFC pursuant to this agreement. City shall have access to said books of account
during regular business hours for purposes of inspection and audit. EDFC shall fully cooperate
with the City 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 the Scope of Services in Exhibit A, EDFC
shall furnish quarterly reports on its activities and services during each period. EDFC shall also
provide a combined quarterly report along with a detailed annual financial report by June 1.
2013
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D. FINANCIAL COMPENSATION BY CITY
In consideration of the EDFC's performance of the above services, and under the terms
of this Agreement, the City 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 Exhibit A. This sum of
money shall constitute the entirety of City's financial contribution to the EDFC during the
effective dates of this Agreement.
The compensation provided in this paragraph shall be paid to EDFC in installments as
fol lows:
Terms of Pavment. 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 City. The invoices shall be accompanied with a description of work
performed on behalf of the City and the amount of time spent on each item. Invoices shall be
accompanied by documentation sufficient to enable the City to determine progress made.
E. INSURANCE AND INDEMNIFICATION
During the term of this Agreement, the EDFC agrees to indemnify and hold harmless the '
City, its officers, agents, and employees from and against any and all claims, losses, defense
costs, or liability of any kind or nature which the City, 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 City.
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 summarized below and fully detailed in Exhibit B approved by the City and issued by
admitted California insurers approved by the City 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). The City, its officers, officials, employees, and volunteers are to be covered as
Additional Insured. I
2. Worker's Compensation coverage at statutory limits.
The certificates of insurance and endorsements shall be completed to the satisfaction of
the City.
Should the EDFC fail to comply with this paragraph, the City shall have the right to
immediately terminate this Agreement without further notice to EDFC.
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F. RELATIONSHIP BETWEEN EDFC AND CITY
Nothing in this Agreement shall be construed as making the EDFC or any of its employees or
representatives, the agent or employee of the City for any purpose, or any employee of the City
an employee of the EDFC or creating between the City 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 John Kuhry, Executive Director of EDFC. The key contact person for City of
Ukiah will be Sage Sangiacomo, Assistant City Manager.
G. 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 City 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.
H. 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 from 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.
IJ. 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
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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 any way 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:
City of Ukiah Economic Development & Financing Corporation
Attention: Sage Sangiacomo Attn: John Kuhry
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
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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 is 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 City of Ukiah 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 I
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. '
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CITY OF UKIAH ECONOMIC DEVELOPMENT &
FINANCING CORPORATION
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By: '�� ,�-�� �� By: �— �� � � � ��„ ,-,
' Jane Chambers, City Manager �esse`Burnett II,LChairperson I
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ATTEST:
Linda Brown, City Clerk
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EXHIBIT A
ECONOMIC DEVELOPMENT & FINANCING CORPORATION �
SCOPE OF SERVICES
Contractor shall provide the following services:
1. Assist the City during the term of this agreement with support and coordination as
needed for economic development.
2. Work in cooperation with the City of Ukiah to assist 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, the Ukiah Main Street Program and the Greater Ukiah Chamber of Commerce.
3. Encourage a cooperative focus on economic development activities between the City of
Ukiah, Mendocino County, tribal governments, and all other Cities within Mendocino
County.
4. Assist local businesses within the City of Ukiah in locating sources of loan funds, grants,
private and public capital, and venture capital funds.
Performance Indicators
§ Number of local businesses within the City of Ukiah assisted with locating
sources of loan funds, grants, and other sources of capital.
§ Organize at least one Access to Capital Workshop.
§ Provide the City with up to date information pamphlets about EDFC services for I
distribution.
5. Serve on the City's Economic Development Coordination Group which works to provide
coordinated access to capital and business development services.
Performance Indicator
§ Percentage of Economic Development Coordination Group meetings attended
by the EDFC representative during the contract period. '
6. Continue to seek grant funding to support the services and activities provided through
EDFC.
Performance Indicators
§ As approved and determined to be necessary by the City, complete at least one ,
grant application on behalf of the City of Ukiah (i.e. EDA, USDA Rural
Development or CDBG).
§ Total amount of funds awarded to EDFC in the contract year that support
economic development activities in the Greater Ukiah Valley.
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' 7. Communicate activities, service delivery, and fiscal reports to the City.
Performance Indicators
§ Submit detailed quarterly reports to the City regarding activities and services
provided for local businesses within the City of Ukiah.
§ Submit a detailed annual report to the City regarding activities and services
during contract period and plans for the up-coming year.
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EXHIBIT B �
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INSURANCE REQUIREMENTS FOR CONSULTANTS
Consultant(s) shall procure and maintain for the duration of the contract insurance against
claims for injuries to persons or damages to property which may arise from or in connection with
the performance of the work hereunder by the Consultant(s), his agents, representatives, or �
employees. j
' I. Minimum Scope of Insurance
Coverage shall be at least as broad as:
A. Insurance Services Office Commercial General Liability coverage (Form No. CG 20 10
10 01 and Commercial General Liability — Completed Operations Form No. CG 20 37 10
01). '
B. Insurance Services Office form number CA 0001 (Ed. 1/87) covering Automobile.
Liability code 1 (any auto).
C. Workers' Compensation insurance as required by the State of California and
Employer's Liability Insurance.
D. Errors and Omissions liability insurance appropriate to the consultanYs profession.
Architects' and engineers' coverage is to be endorsed to include contractual liability.
II. Minimum Limits of Insurance
Consultant shall maintain limits no less than:
A. General Liability: $1,000,000 per occurrence for bodily injury, personal injury and
property damage including operations, products and completed operetions, as
applicable. If Commercial General Liability Insurance or other form with a general
aggregate limit is used, either the general aggregate limit shall apply separately to this
projecUlocation or the general aggregate limit shall be twice the required occurrence limit.
Insurance must be written on an occurrence basis.
B. Automobile Liability: $1,000,000 per accident for bodily injury and property damage.
Insurance must be written on an occurrence basis.
C. Workman's Compensation Employer's Liability: $1,000,000 per accident for bodily injury
or disease.
D. Errors and Omissions liability: $1,000,000 per occurrence. If written on a claims-made
basis, insurance coverage must cover claims filed within 3 years after contract work
completed.
III. Deductibles and Self-Insured Retentions
Any deductibles or self-insured retentions must be declared to and approved by the City. The
City may require the insurer to reduce or eliminate such deductibles or self-insured retentions
', with respect to the City, its officers, officials, employees and volunteers; or the Consultant to
provide a financial guarantee satisfactory to the City guaranteeing payment of losses and
related investigations, claim administration and defense expenses; or to approve the deductible
without a guarantee.
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IV. REQUIRED Insurance Provisions
Proof of general liability and automobile liability policies are to contain, or be I
endorsed to contain, the following provisions: i
A. The City, its officers, officials, employees, and volunteers are to be covered as
ADDITIONAL INSURED with respect to liability arising out of automobiles owned,
leased, hired or borrowed by or on behalf of the contractor, and with respect to liability �
arising out of work or operations performed by or on behalf of the Consultant including I
materials, parts or equipment, fumished in connection with such work or operations. ,
General liability coverage can be provided in the form of an endorsement to the I
ConsultanYs insurance, or as a separate owner's policy.
B. The workers' compensation policy is to be endorsed with a waiver of
subrogation. The insurance company, in its endorsement, agrees to waive all rights of
subrogation against the City, its officers, officials, employees and volunteers for losses
paid under the terms of this policy which arises from the work performed by the named
, insured for the City. NOTE: You cannot be added as an additional insured on a
workers' compensation policy.
C. For any claims related to this project, the ConsultanYs insurance coverage shall be
primary insurance with respect to the City, its officers, officials, employees, and
volunteers. Any insurance or self-insurance maintained by the City, its officers, officials,
employees, or volunteers shall be in excess of the ConsultanYs insurance and shall not
contribute with it.
D. Each insurance policy required by this clause shall be endorsed to state that
coverage shall not be canceled by either party, except after thirty (30) days' prior
written notice by certified mail, return receipt requested, has been given to ihe City.
V. RATING - Acceptabilitv of Insurers I'
Insurance is to be placed with admitted California insurers with a current A.M. BesYs rating of no
I less than A- for financial strength, AA for long-term credit rating and AMB-1 for short-term credit
rating.
VI. Verification of Coveraqe
Consultant shall furnish the City with original certificates and amendatory endorsements
effecting coverage required by this clause. The endorsements should be on forms provided
by the City. If endorsements are on forms other than the City's forms, those endorsements
must provide coverage that is equivalent to or better than the forms requested by the City. All
certificates and endorsements are to be received and approved by the City before work
commences. The City reserves the right to require complete, certified copies of all required
insurance policies, including endorsements affecting the coverage required by these
specifications at any time. i
If you have questions regarding our insurance requirements contact:
Risk Manager
(707) 463-6287 or FAX (707) 463-6204
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