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HomeMy WebLinkAboutA64-04 Regional Dev. Effort EVCSUB-RECIPIENT AGREEMENT WITH THE ECONOMIC VITALITY CORPORATION FOR CDB G FUNDS FOR A REVOLVING LOAN FUND PROGRA M THIS AGREEMENT is made and entered into in the City of San Luis Obispo on this a7 ,day o f , 2004, by and between the CITY OF SAN LUIS OBISPO,a charter city , incorporated in the State of California, hereinafter referred to as City, and the Economic Vitality Corporation of Sa n Luis Obispo County,a non-profit corporation, hereinafter referred to as EVC ; jointly referred to as Parties . WITNESSETH : WHEREAS,the incorporated cities of San Luis Obispo County have agreed to participate and support th e establishment of a regional economic development effort ; an d WHEREAS, the City desires to diversify and expand its industrial, retail, commercial, recreational, an d general business services economic base ; an d WHEREAS, the EVC is charged with the mission "to stimulate the economic vitality of San Luis Obisp o County, generate jobs and increase financial investment within the County by promoting the retention, expansion, an d attraction of business and industry to the area"; an d WHEREAS, the EVC is organized for such economic development activities on behalf of the City and is in a position to accomplish such goals and purposes of the City in an efficient and economical manner ; and WHEREAS, the Government Code of the State of California authorizes the expenditure of public funds by a municipal corporation for economic development activities as therein provided ; an d WHEREAS, the City, has entered into grant agreements with the Federal Department of Housing and Urba n Development, hereinafter called "HUD", to implement the Housing and Community Development Act of 1974, herei n called the "Act ." Said Act is omnibus legislation relating to federal involvement in a wide range of housing an d community development activities under the Community Development Block Grant (CDBG) Program ; and WHEREAS, the EVC has been incorporated as a private, non-profit corporate entity under the Nonprofi t Corporation Law of the State of California and pursuant to section 501(c) of the Federal Internal Revenue Code to conduct economic development activities in the County of San Luis Obispo, specifically including but not limited to th e following: A.To develop and manage a coordinated, Revolving Loan Fund Program to expand, retain and attrac t desirable firms to provide financing, employee recruitment and training, technical and managemen t assistance ; B.To develop job, employment, training and business opportunities for residents of San Luis Obisp o City and County, especially for targeted low and moderate income residents through the attraction , retention and expansion of private sector firms ; EVC CDBG Revolving Loan Fund 2 0004 C . To plan and manage economic development implementation activities, programs and projects whic h would attract and create new firms, and retain and expand existing businesses, including but no t limited to those owned by targeted low and moderate income residents of San Luis Obispo County ; and WHEREAS, the City and HUD have allocated CDBG funds for Revolving Loan purposes in the approximat e amounts and corresponding years as follows : 1997-98, $150,000 ; 1998-99, $100,000 ; 1999-2000, $60,000 ; and WHEREAS, the Parties' participation in the programs funded by the Act is pursuant to all activities describe d herein, and in compliance with all applicable federal laws, regulations and executive orders ; an d WHEREAS, according to federal regulations 24 CFR . part 570 .503, before disbursing any CDBG funds to a "Sub-recipient," a written agreement shall be signed by the "Recipient" and "Sub-recipient"; and WHEREAS, this Agreement shall remain in effect throughout the implementation of projects specified in th e 2004 Consolidated Plan and any amendments thereto . NOW, THEREFORE,in consideration of their mutual promises, obligations, and covenants hereinafte r contained, and pursuant to the provisions of Title 24, Chapter V of the Code of Federal Regulations, the Parties agree a s follows : 1.TERM .The term of this Agreement shall become effective on the date of execution hereof by both parties , shall continue in effect until June 30, 2005, provided, however, that this Agreement may be renewed each yea r hereafter, for periods of one year, by action of the City Council and EVC's acceptance of said renewal . 2.CITY'S OBLIGATIONS .For managing the City's Revolving Loan Fund as specified in this Agreement , City will pay and EVC shall receive compensation in a total sum not to exceed the defined 20% for administrative fee s associated with the allocations of CDBG revolving funds . The hourly rate for services shall be $150 .00 . 3.EVC's OBLIGATIONS .For and in consideration of the payments and agreements herein befor e mentioned to be made and performed by City, EVC agrees with City to manage the City's Revolving Loan Fun d Program as follows : a.Retain or create at least one (1) full-time permanent position for every $25,000 loaned . b.Request input from Economic Development Manger prior to making a loan . c.Provide written quarterly reports to the Economic Development Manager and the Housin g Programs Manager. d.Market to City of San Luis Obispo businesses the Revolving Loan Fund Program . e.Screen loan applicants, review and underwrite applications for assistance ; prepare any necessar y agreements . EVC CDBG Revolving Loan Fund 200 4 p .2 f.Monitor assisted activities ; provide (or arrange for provision of) services involved in screening , referring, placement and training for persons filling employment opportunities generated by th e CDBG economic development assistance . g.Conduct lending program in accordance with 24 CFR 50 .201 (ii)(o) and have the goal o f facilitating two (2) to five (5) loans in the City of San Luis Obispo per CDBG Program Year . 4.INSURANCE . EVC shall procure and maintain for the duration of the contract insurance which meets th e requirement of Exhibit A . As evidence of this insurance, EVC shall provide the City with a Certificate of Insurance an d an Endorsement naming the City as "Additional Insured". 5.AMENDMENTS . Any amendment, modification, or variation from the terms of this Agreement shall be i n writing and shall be effective only upon approval by the Council or the City Administrative Officer of the City . 6.FEDERAL REGULATIONS.All references in the Agreement to "federal regulations" refer to numbere d sections of Title 24, Chapter V, of the Code of Federal Regulations, April 1, 1994 edition, unless otherwise indicated . 7.STATEMENT OF WORK . The statement of work required is Exhibit B and it shall provide sufficien t detail to give a sound basis for the City to effectively monitor performance of all activities being implemented unde r this Agreement . Exhibit B addresses the eligible use of CDBG funds according to federal regulation outlined in 24 CF R Sections 570 .201 through 570 .203 . Exhibit B includes a description of the activities, related tasks, target completio n dates and a budget. EVC may request modification of the tasks, schedules or budgets in writing to the City . The City shall review each request to modify tasks, schedule or budget on a case-by-case basis and will respond to the EV C within 14 days of the request . The EVC may make budget revisions within the budgeted amounts shown in Exhibit B without prior approval of the City, provided that any increases or decreases in the total amounts of CDBG funds show n in Exhibit B shall remain subject to approval by City . 8.RECORDS .According to federal regulation 570 .503 (b)(2), records that the EVC must maintain, and th e reports that must be submitted to assist the City in meeting its record keeping and reporting requirements, shall b e specified in this Agreement . To effectively monitor projects for compliance with CDBG regulations, all records must b e available for review, or may be required for submittal to the City . All records required by section 570 .506 of federa l regulations shall be maintained by the EVC and shall be, on the request of the City, submitted to the City . 9.REPORTS. All reports required by federal regulations 570 .502 and 570.507 shall be prepared and maintained by the EVC . The following reports shall be maintained by the EVC to the City : A.The EVC shall submit an annual performance and evaluation report no later than 30 days after th e completion of the most recent program year showing the status of all activities as of the end of th e program year . B.Quarterly reports shall be submitted by the EVC to the City on, or before, the 15th day following th e EVC CDBG Revolving Loan Fund 200 4 p. 3 quarter end . The quarterly report shall include a complete description of the approved activitie s completed, including loan to job ratio, any problems encountered and corrective actions taken . C.The EVC agrees to provide access by City to its accounting records and documents and to provid e non-financial assistance needed by City in the performance of its monitoring function . D.The EVC will contract with an independent certified public accountant to conduct a financial audit o f their whole organization each year . The EVC will support the County of San Luis Obispo's annua l review of the projects funded by CDBG Funds in accordance with the County's standards . E.Copies of any audited financial reports and the single audit report will be provided to the City . F.The EVC will require each of its non-profit contractors that receive at least $25,000 of CDBG fund s to procure audits of their financial records in accordance with 0MB Circular No . A-133 . G.Other reports and information may be required as determined necessary by HUD to carry out it s responsibilities under the Act or other applicable laws . The EVC agrees to provide any HUD required reports. 10. PAYMENTS.The EVC may request payments on an "as-committed" loan basis and administrativ e expenses incurred . The form required by HUD for cash disbursements shall be used by the EVC to request paymen t from the City. The City shall review payment claims for compliance with the statements of work and other provision s of this Agreement . All payments of claims are subject to the availability of funds to the City from HUD . 11 . PROGRAM INCOME-SECTION 570 .504(c). A.The EVC shall notify the City on a quarterly basis of any income generated by the expenditure o f CDBG funds and received by the EVC . Such income may be retained by the EVC subject to th e provisions of this Agreement, the Act, and its regulations . Any program income retained by EV C shall be used only for eligible activities in accordance with all CDBG requirements . B.EVC shall assist City in monitoring the use of program income and reporting the use of such incom e to HUD . In the event of grant close-out as defined in section 570 .509 of the federal regulations o r change of status of EVC, all program income on hand or received by the EVC subsequent to th e close-out or change of status shall be paid to the City . 12 . OTHER ADMINISTRATIVE REQUIREMENTS .The EVC shall comply with the requirements and standards of MOB Circular No . A-122, "Cost Principals for Non-profit Organizations," applicable provisions of MO B Circular No . A-133, "Audits of Institutions of Higher Education and Other Non-profit Institutions" (as set forth in 2 4 CFR ., part 45), and applicable provisions of MOB Circular No . A-I 10 (as set forth in 24 CFR . part 84). 13 . OTHER PROGRAM REQUIREMENTS .The EVC shall carry out each activity in compliance wit h all federal laws and regulations described in subpart K of the federal regulations, except that the EVC does not assum e the City's environmental clearances described in federal regulations section 570 .604 ; and EVC does not assume City's responsibility for initiating the review process under the provisions of 24 CFR . part 52 per federal regulatio n 570.503(5)(ii).The EVC is responsible for spending all funds in compliance with all applicable regulations, laws an d EVC CDBG Revolving than Fund 200 4 p . 4 executive orders, and warrants it will do so . In the event that the EVC violates any such regulations, laws and/o r executive orders, and such violation(s) result in the City incurring expenses and/or making payments to HU D attributable to some or all of the funds received by EVC, then the EVC shall pay City, on the demand of City, all of th e said expenses incurred by City and all of the payment made by City as a result of EVC's said violation(s). 14.SUSPENSION AND TERMINATION .If City determines that EVC has incurred obligations or mad e expenditures for purposes which are not permitted or are prohibited under the terms and provisions of this Agreement , or if City determines that EVC has failed to fulfill its obligations under this Agreement in a timely and professiona l manner, or if EVC is in violation of any of the terms or provisions of this Agreement, or if City is given notice by HU D that HUD is terminating its Grant Agreement with the City, or if EVC should be adjudged to be bankrupt, or if EV C makes a general assignment for the benefit of the EVC's creditors, or if a receiver should be appointed in the event o f EVC's insolvency, then City may elect to suspend or terminate this Agreement with EVC . Termination shall have n o effect upon the rights and obligations of the parties arising out of any transaction occurring prior to effective date o f such termination . If City's termination of EVC for cause is defective for any reason, including but not limited to City's reliance on erroneous facts concerning EVC's performance, or any defect in the notice thereof, City's maximu m liability shall not exceed the amount payable to EVC under Attachment B of this Agreement . 15.REVERSION OF ASSETS-SECTION 570 .503.All transfers of assets are subject to the provisions o f this Agreement . Upon termination or expiration of this Agreement, the EVC shall transfer to the City any CDBG fund s on hand at the time of such termination or expiration and any accounts receivable attributable to the use of CDB G funds . Any real property under EVC's control that was acquired or improved in whole or in part with CDBG funds i n excess of $25,000 (whether in the form of a grant or loan) must be used to meet one of the national objectives in federa l regulations section 570 .208 until five years after the expiration or termination of this Agreement . If EVC chooses not t o use the real property to meet one of the national objectives for five years, then EVC shall pay City upon expiration o r termination or this Agreement an amount equal to the current market value of the real property less any portion of th e value attributable to expenditures of non-CDBG funds for the acquisition of, or improvement to, the property . 16.INDEMNIFICATION . EVC shall defend, indemnify and save harmless the City, its officers, agents an d employees, from any and all claims, demands, damages, costs, expenses, judgments or liability arising out of thi s Agreement or attempted performance of the provisions hereof, including but not limited to those predicated upo n theories of violation of statute, ordinance, or regulation, professional malpractice, negligence, or recklessness includin g negligent or reckless operation of motor vehicles or other equipment, furnishing of defective or dangerous products or completed operations, premises liability arising from trespass or inverse condemnation, violation of civil rights and als o including any adverse determination made by the Internal Revenue Service or the State Franchise Tax Board wit h respect to EVC's "independent contractor" status that would establish a liability for failure to make social security and income tax withholding payments, failure to comply with workers' compensation laws, or any act or omission to act , whether or not it be willful, intentional or actively or passively negligent on the part of EVC or its agents, employees o r other independent consultants directly responsible to EVC, providing further that the foregoing shall apply to an y wrongful acts or any active or passively negligent acts or omissions to act, committed jointly or concurrently by EVC o r EVC CDBG Revolving Loan Fund 200 4 p . 5 EVC's agents, employees or other independent contractors and the City, its agents, employees or other independen t contractors . Nothing contained in the foregoing indemnity provision shall be construed to require indemnification fro m claims, demand, damages, costs, expenses or judgments resulting solely from the conduct of the City . 17.EQUAL EMPLOYMENT OPPORTUNITY .During the performance of this Agreement, EVC agree s that it will not discriminate against any employee or applicant for employment because of race, color, religion, sex, o r national origin, and specifically agrees to comply with the provisions of Section 202 of Presidential Executive Orde r No .11246 . 18.ENTIRE AGREEMENT AND MODIFICATION. This Agreement sets forth the full and entir e understanding of the Parties regarding the matter set forth herein, and any other prior or existing understandings o r agreements by the Parties, whether formal or informal, regarding any matters are hereby superseded or terminated i n their entirety. No changes, amendments, or alterations shall be effective unless in writing and signed by all partie s hereto . EVC specifically acknowledges that in entering into and executing this Agreement, EVC relies solely upon th e provisions contained in this Agreement and no others . 19.FUNDING FOR ADDITIONAL SERVICES .Funding of any programs, projects, or services beyon d the term of this Agreement, by any new agreement or amendment or extension of this Agreement, have not bee n authorized and will depend upon Recipient's determination of satisfactory performance of this Agreement by EVC an d upon the availability to City of additional grant funds allocated for such purposes . Neither City nor any employee o f City has made any promise or commitment, express or implied that any additional funds will be paid or made availabl e to EVC for the purpose of this Agreement over and above the funds expressly allocated under the terms of thi s Agreement. 20.CONTRACTORS AND SUBCONTRACTORS .EVC agrees to, and shall require its subcontractors t o agree to : A.Perform the work in accordance with federal, state and local housing and building codes a s applicable . B.Comply with the labor standards described in 24 CFR .570.603 and with the provisions of th e California Labor Code, as applicable . C.Comply with the applicable equal opportunity requirements described in 24 CFR .570 .607 . D.Maintain at least the minimum state-required workers' compensation insurance for those employee s who will-perform the work or any part of it . E.Maintain, if so required by law, unemployment insurance, disability insurance and liability insuranc e in an amount to be determined by the State which is reasonable to compensate any person, firm, o r corporation who may be injured or damaged by EVC or any subcontractor in performing the work o r any part of it . EVC CDBG Revolving Loan Fund 200 4 p . 6 21 . COMPLIANCE WITH COUNTY AND STATE LAWS AND REGULATIONS .EVC agrees to comply with all County and State laws and regulations that pertain to construction, health and safety, labor, fai r employment practices, equal opportunity and all other matters applicable to EVC, its subcontractors, and the work . 22. NO ASSIGNMENT WITHOUT CONSENT .Inasmuch as this Agreement is intended to secure th e specialized services of EVC, EVC shall not have the right to assign or transfer this Agreement, or any part hereof o r monies payable hereunder, without the prior written consent of City, and any such assignment or transfer without th e City's prior written consent shall be considered null and void . 23 . LAW GOVERNING AND VENUE.This Agreement has been executed and delivered in the State o f California, and the validity, enforceability and interpretation of any of the clauses of this Agreement shall b e determined and governed by the laws of the State of California . All duties and obligations of the Parties created hereunder are performable in San Luis Obispo County, and such County shall be the venue for any action, o r proceeding that may be brought, or arise out of, in connection with or by reason of the Agreement . 24 .ENFORCEABILITY.In any term, covenant, condition or provision of this Agreement is held by a court of competent jurisdiction to be invalid, void or unenforceable ; the remainder of the provisions hereof shall remai n in hill force and effect and shall in no way be affected, impaired or invalidated thereby . 25.BINDING ON SUCCESSORS IN INTEREST .All provisions of this Agreement shall be binding o n the parties and their heirs, assigns and successors in interest . 26.EFFECT OF WAIVER.City's waiver or breach of any one term, covenant or other provision of thi s Agreement shall net be a waiver of a subsequent breach of the same term, covenant or provision of this Agreement or o f the breach of any other term, covenant or provision of this Agreement . 27 . PATENTS AND ROYALTIES . A.EVC shall provide and pay for all licenses and royalties necessary for the legal use and operation o f any of the equipment or specialties used in the projects funded with this Agreement . Certificate s showing the payment of any such licenses or royalties, and permits for the use of any patented o r copyrighted devices shall be secured and paid for by the EVC and delivered to the City upo n completion of the projects funded by this Agreement, if required . B.EVC shall assume all costs arising from the use of patented materials, equipment, devices, o r processes used in or incorporated in the Project and agrees to indemnify and hold harmless the Cit y and its duly authorized representatives, from all suits of law, or actions of every nature for or o n account of the use of any patented materials, equipment, devices, or processes . 28 .COMPLETE AGREEMENT .This written Agreement, including all writings specifically incorporate d herein by reference, shall constitute the complete agreement between the parties hereto . No oral agreement , EVC CDBG Revolving than Fund 200 4 1).7 understanding, or representation not reduced to writing and specifically incorporated herein shall be of any force o r effect, nor shall any such oral agreement, understanding, or representation be binding upon the parties hereto . 29.NOTICE . All written notices to the parties hereto shall be sent by United States mail, postage prepaid b y registered or certified mail addressed as follows : City Wendy George, Assistant City Manage r City of San Luis Obisp o 990 Palm Stree t San Luis Obispo, CA 9340 1 Contractor Ray Johnson, President/CEO Economic Vitality Corp . of San Luis Obispo Count y P .O. Box 525 7 San Luis Obispo, CA 9340 6 Any changes in address shall be provided in writing to the other Party . 30.AUTHORITY TO EXECUTE AGREEMENT .Both City and EVC covenant that each individua l executing this agreement on behalf of each party is a person duly authorized and empowered to execute Agreements fo r such party . IN WITNESS WHEREOF, the parties hereto have caused this instrument to be executed the day and year firs t above written . ATTEST :CITY OF SAN LUIS OBISPO , A Municipal Corporation By : Mayor, David F . Romero APPROVED AS TO FORM : EVC CDBG Revolving Loan Fund 200 4 p. 8 EXHIBIT A INSURANCE REQUIREMENTS : Consultant Service s The Contractor shall procure and maintain for the duration of the contract insurance against claims for injuries t o persons or damages to property which may arise from or in connection with the performance of the work hereunder b y the Contractor, its agents, representatives, employees, or subcontractors . Minimum Scope of Insurance .Coverage shall be at least as broad as : 1. Insurance Services Office Commercial General Liability coverage (occurrence form CG 0001). 2. Insurance Services Office form number CA 0001 (Ed . 1/87) covering Automobile Liability, code 1 (any auto). 3. Workers' Compensation insurance as required by the State of California and Employer's Liability Insurance . Minimum Limits of Insurance .Contractor shall maintain limits no less than : 1. General Liability : $1,000,000 per occurrence for bodily injury, personal injury and property damage . If Commercial General Liability or other form with a general aggregate limit is used, either the genera l aggregate limit shall apply separately to this project/location or the general aggregate limit shall be twice th e required occurrence limit. 2. Automobile Liability : $1,000,000 per accident for bodily injury and property damage . 3. Employer's Liability : $1,000,000 per accident for bodily injury or disease . Deductibles and Self-Insured Retentions .Any deductibles or self-insured retentions must be declared to an d approved by the City . At the option of the City, either : the insurer shall reduce or eliminate such deductibles or self- insured retentions as respects the City, its officers, officials, employees and volunteers ; or the Contractor shall procure a bond guaranteeing payment of losses and related investigations, claim administration and defense expenses . Other Insurance Provisions .The general liability and automobile liability policies are to contain, or be endorsed t o contain, the following provisions : 1. The City, its officers, officials, employees, agents and volunteers are to be covered as insureds as respects : liability arising out of activities performed by or on behalf of the Contractor ; products and complete d operations of the Contractor ; premises owned, occupied or used by the Contractor ; or automobiles owned,. leased, hired or borrowed by the Contractor . The coverage shall contain no special limitations on the scope o f protection afforded to the City, its officers, official, employees, agents or volunteers . 2. For any claims related to this project, the Contractor's insurance coverage shall be primary insurance a s respects the City, its officers, officials, employees, agents and volunteers . Any insurance or self-insuranc e maintained by the City, its officers, officials, employees, agents or volunteers shall be excess of th e Contractor's insurance and shall not contribute with it . 3. Any failure to comply with reporting or other provisions of the policies including breaches of warranties shal l not affect coverage provided to the City, its officers, officials, employees, agents or volunteers . 4. The Contractor's insurance shall apply separately to each insured against whom claim is made or suit i s brought, except with respect to the limits of the insurer' s liability . 5. Each insurance policy required by this clause shall be endorsed to state that coverage shall not be suspended , voided, canceled by either party, reduced in coverage or in limits except after thirty (30) days' prior writte n notice by certified mail, return receipt requested, has been given to the City . 6. Coverage shall not extend to any indemnity coverage for the active negligence of the additional insured in an y case where an agreement to indemnify the additional insured would be invalid under Subdivision (b) o f Section 2782 of the Civil Code . Acceptability of Insurers .Insurance is to be placed with insurers with a current A .M . Best's rating of no less than A : VII . Verification of Coverage .Contractor shall furnish the City with a certificate of insurance showing maintenance of th e required insurance coverage . Original endorsements effecting general liability and automobile liability coverage required by this clause must also be provided . The endorsements are to be signed by a person authorized by that insure r to bind coverage on its behalf . All endorsements are to be received and approved by the City before work commences . EVC CDBG Revolving Loan Fund 200 4 p . 9 EXHIBIT B EVC STATEMENT OF WOR K CDBG SUB RECIPIEN T Contract Amount : $310,000 Administration Amount : Not to exceed 20% of the Contract Amoun t Description of Work : EVC Revolving Loan Fun d The EVC will act as a sub recipient of $150,000 of the 1997-98 program year, $100,000 of the 1998-99 program year , and $60,000 of the 1999-2000 program year CDBG funds from the City and will implement the Revolving loan Fun d (RLF) through EVC staff. Of these funds, 20% may be used for administration . The work will include financial an d other forms of assistance to micro-enterprises and other eligible businesses pursuant to applicable CDBG regulations . The EVC will enter into agreements with the assisted businesses to document that the CDBG-funded assistance wil l result in the retention or creation of one full-time job from an eligible low or moderate income resident of the City o f San Luis Obispo for each $25,000 in CDBG funds utilized in this business assistance program . The EVC will also assis t the City by providing adequate information for the City to meet its environmental review responsibilities under 24 DV R 58 et seq . Repayments of loans of CDBG funds will be made directly to the EVC and be deposited into the RLF cit y pool, consistent with CDBG regulations. Other tasks involved in the Revolving Loan Fund include : 1.Retain or create at least one (1) full-time permanent position for every $25,000 loaned . 2.Request input from Economic Development Manager prior to making a loan . 3.Provide written quarterly reports to the Economic Development Manager and Housing Programs Manager . 4.Market to City of San Luis Obispo businesses the Revolving Loan Fund Program . 5.Screen applicants, review and underwrite applications for assistance ; prepare any necessary agreements . 6.Monitor assisted activities ; provide (or arrange for provision of) services involved in screening, referring , placement and training for persons filling employment opportunities generated by the CDBG economi c development assistance. 7.Conduct micro-lending program in accordance with 24 CFR 570 .201 (ii)(o) and have the goal of facilitator s two (2) to five (5) micro loans in the City of San Luis Obispo per CDBG Program year . EVC CDBG Revolving Loan Fund 200 4 p . 10