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HomeMy WebLinkAboutEconomic Development and Financing Corporation (EDFC) 2022-07-011 Performance Agreement.EDFC-City of Ukiah FY 2022-23 PERFORMANCE AGREEMENT between the CITY OF UKIAH and the ECONOMIC DEVELOPMENT AND FINANCING CORPORATON This Agreement is made and entered on July __, 2022 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 collaborative projects and 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. 3. EDFC was created in 1995 by the County of Mendocino and its incorporated cities in order to facilitate a countywide approach to economic development. At that time, a formula was developed for funding, whereby each city would pay 75 cents per capita per year and the County would pay 50 cents per capita per year. This formula, however, is not binding; compensation may also be based on performance of the agreed-upon scope of services and other terms outlined in this Agreement. 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, 2022 and shall terminate on June 30, 2023. 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 outline the accounting and utilization of City funds paid to the EDFC for services defined in 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 detailed annual reports by June 1, 2022. 1 2 Performance Agreement.EDFC-City of Ukiah FY 2022-23 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 Eleven thousand, nine-hundred eighty-two dollars and seventy-five cents ($12,455.25) for fiscal year 2022-23 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 follows: Terms of Payment. Payment to EDFC for services rendered in accordance with this contract shall be based upon submission of annual 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. 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 A 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). 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 then, the City shall have the right to immediately terminate this Agreement without further notice to EDFC. 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 Robert Gernert, Executive Director of EDFC, or his designee. The key contact person for City of Ukiah will be Sage Sangiacomo, City Manager, or his designee. 3 Performance Agreement.EDFC-City of Ukiah FY 2022-23 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. I. 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 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. 4 Performance Agreement.EDFC-City of Ukiah FY 2022-23 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: Robert Gernert 300 Seminary Ave. 208 B South Oak St. 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 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. 5 Performance Agreement.EDFC-City of Ukiah FY 2022-23 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. CITY OF UKIAH ECONOMIC DEVELOPMENT & FINANCING CORPORATION By: _______________________ By: _______________________ Sage Sangiacomo, City Manager Robert Gernert, Executive Director ATTEST:_______________________________________ Kristine Lawler, City Clerk Kristine Lawler (Dec 5, 2022 08:20 PST) Kristine Lawler 6 Performance Agreement.EDFC-City of Ukiah FY 2022-23 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 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 County of Mendocino, tribal governments, Workforce Alliance of the North Bay, West Business Development Center/Mendocino SBDC, Sonoma Mendocino Economic Development District, and the Greater Ukiah Business and Tourism Alliance. Performance Indicators § Provide key collateral in Spanish and procure translation services as necessary to more effectively reach the LatinX business community. § Continue to maintain current economic and demographic data for the Ukiah area on EDFC’s website. § On a quarterly basis, make site visits to Ukiah-area businesses to share program info and determine needs, possibly in conjunction with other organization(s). § Continue to distribute the Resource Guide. 2. Provide services and programming as the local Community Development Financial Institution (CDFI). 3. Assist with locating grant funding, loans, private and public capital, and venture capital funds to support Ukiah businesses and the City of Ukiah. Of particular interest are grants and low-interest loans that would assist with façade improvements and code-required improvements (seismic retrofits, fire sprinklers, ADA improvements, etc.). Performance Indicators § In the year-end report, detail the number of businesses assisted and the total amount of funds awarded to EDFC in the contract year that support economic development activities in the Greater Ukiah Valley. . 4. Meet as needed with the City of Ukiah Business Liaison and inform the Liaison (by phone or email) when assistance is either requested by or provided to a business within the Ukiah city limits. Performance Indicator § Contact Business Liaison as required. 5. Communicate activities, service delivery, and fiscal reports to the City. Performance Indicator § Submit a detailed annual report to the City Staff and City Council regarding activities and services during contract period and including the work plan for the up-coming year.