HomeMy WebLinkAboutAgreement A-19-333 with EDC.pdf1
2
AGREEMENT
Agreement No . 19-333
3 This Agreement ("Agreement'') is made and entered into this 9th day of~. 2019 ("Effective
4 Date"), by and between the COUNTY OF FRESNO, a Political Subdivision of the State of California,
5 ("COUNTY"), and the Economic Development Corporation, a public-private nonprofit organization serving
6 Fresno County, whose address is 906 "N " Street, Suite 120, Fresno, CA 93721 ("CONTRACTOR").
7 W I T N ES S ET H:
8 WHEREAS, CONTRACTOR is implementing a broad-based economic strategy to improve
9 economic conditions in Fresno County; and
10 WHEREAS, COUNTY has adopted an Economic Development Strategy and the Economic
11 Development Element of the Fresno County General Plan to create jobs, diversify the economy, and
12 improve the skills of the workforce in Fresno County; and
13 WHEREAS, CONTRACTOR, in coordination with the County Administrative Office, is also
14 responsible for implementing policies and programs of the Economic Development Element of the General
15 Plan; and
16 WHEREAS, on August 9, 2011, the Board of Supervisors of the COUNTY approved
17 assignment of COUNTY'S current economic development responsibilities to CONTRACTOR, including but
18 not limited to the management of the administration of COUNTY'S Blue Ribbon Business Committee, and
19 implementation of COUNTY'S Comprehensive Economic Development Strategy; and
20 WHEREAS, in early 2013, the Blue Ribbon Business Committee was disbanded; and, after
21 consultation with CONTRACTOR, replaced by a newly created "Strategy Committee"; and
22 WHEREAS , CONTRACTOR has provided and will continue to provide administration of the
23 Strategy Committee; and
24 WHEREAS, it is recognized by the Board of Supervisors of the COUNTY that reductions in
25 unemployment and underemployment through said economic development goals and strategies are
26 necessary to meet the economic and social needs of the population of the COUNTY; and
27 WHEREAS, it is recognized by both COUNTY and CONTRACTOR that effective
28 implementation of these strategies requires a combined commitment of resources from both the private and
-1-
1 public sectors.
2 NOW. THEREFORE. in consideration of the mutual covenants. terms and conditions contained
3 here. the parties agree as follows:
4 1.OBLIGATIONS OF CONTRACTOR
5 CONTRACTOR shall provide COUNTY with quarterly reports within thirty (30) days after the end of each
6 quarter. detailing activities of CONTRACTOR toward meeting the obligations of CONTRACTOR under this
7 Agreement. CONTRACTOR shall expend an amount. not to exceed $38.000, to provide the following
8 essential services:
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
a.Performance Based Services:
i.CONTRACTOR will provide site visits to businesses interested in locating in Fresno
County. Contractor will report the number of site visits, including the name of the
business (unless business expressly requests to remain anonymous), type of
industry, and location in the quarterly report to the County.
ii.CONTRACTOR will provide technical assistance to businesses staying in Fresno
County or expanding their operations.
iii.CONTRACTOR will allow COUNTY access to CONTRACTOR'S industrial inventory.
iv.CONTRACTOR will maintain, monitor, and draft any required revisions of the
COUNTY Economic Development Strategy for approval by COUNTY, help
COUNTY achieve the progress made towards economic development objectives of
the COUNTY Economic Development Strategy, evaluate the progress made
towards achieving the goals and targets of the COUNTY Economic Development
Strategy at least every five years, and provide a report to the COUNTY Board of
Supervisors. CONTRACTOR will continue to work with COUNTY in implementing
COUNTY's Economic Development Strategy in smaller cities and unincorporated
areas of Fresno County, and will administer COUNTY'S Strategy Committee.
v.CONTRACTOR, in coordination with the County Administrative Office, will help
implement policies and programs of the Economic Development of the County
General Plan.
-2-
1 b.Performance Based Technical Assistance Services:
2 In an effort to encourage the location of new industry within the cities and
3 unincorporated communities of COUNTY and to retain and expand those businesses currently within the
4 COUNTY, CONTRACTOR shall provide valuable technical expertise to businesses in small cities and
5 unincorporated areas to complement and supplements the COUNTY'S Economic Development resources,
6 including:
7 i.CONTRACTOR will provide location packaging to businesses interested in relocating
8 to COUNTY.
9 B.CONTRACTOR will help identify financing options, screen for eligible tax incentive programs, and
1 O make referrals to partner agencies for additional services including but not limited employee
11 recruitment, marketing, business plan development, and energy efficiency assessments.
12
13
2.OBLIGATIONS OF COUNTY
A.COUNT Y shall provide an amount not to exceed $38,000 to CONTRACTOR
14 to promote and market the resources and economy of COUNTY as provided under this
15 Agreement.
16 3.TERM
17 The term of this Agreement shall be for a period of one (1) year, commencing on July 1, 2019
18 through and including June 30, 2020.
19 4.TERMINATION
20
21
22
23
24
25
26
27
28
A.Non-Allocation of Funds -The terms of this Agreement, and the services to
be provided hereunder, are contingent on the approval of funds by the appropriating government
agency. Should sufficient funds not be allocated, the services provided may be modified, or this
Agreement terminated, at any time by giving CONTRACTOR thirty (30) days advance written
notice.
B.Breach of Contract -COUNTY may immediately suspend or terminate this
Agreement in whole or in part, where in the determination of COUNTY there is:
1)An illegal or improper use of funds;
2)A failure to comply with any term of this Agreement;
-3-
1 3)A substantially incorrect or incomplete report submitted to the COUNTY;
2 4)Improperly performed service.
3 In no event shall any payment by COUNTY constitute a waiver by COUNTY of any breach of this
4 Agreement or any default which may then exist on the part of CONTRACTOR. Neither shall such payment
5 impair or prejudice any remedy available to the COUNTY with respect to the breach or default. COUNTY
6 shall have the right to demand of CONTRACTOR the repayment to COUNTY of any funds disbursed to
7 CONTRACTOR under this Agreement, which in the judgment of COUNTY were not expended in
8 accordance with the terms of this Agreement. CONTRACTOR shall promptly refund any such funds upon
9 demand.
10 C.Without Cause -Under circumstances other than those set forth above, this
11 Agreement may be terminated by COUNTY upon the giving of thirty (30) days advance written notice of an
12 intention to terminate to CONTRACTOR.
13 5.COMPENSATION/INVOICING: COUNTY agrees to pay CONTRACTOR and
14 CONTRACTOR agrees to receive compensation as follows: quarterly compensation in an amount not to
15 exceed $9,500, with the maximum total compensation in an amount not to exceed $38,000 for the term of
16 the Agreement. CONTRACTOR shall submit quarterly invoices electronically to the County of Fresno
17 County Administrative Office with the quarterly activity report required in Section 1 of this Agreement, within
18 thirty (30) days after the end of each quarter.
19 In no event shall services performed under this Agreement be in excess of $38,000 during the term
20 of this Agreement. It is understood that all expenses incidental to CONTRACTOR'S performance of
21 services under this Agreement shall be borne by CONTRACTOR.
22 6.INDEPENDENT CONTRACTOR: In performance of the work, duties and obligations
23 assumed by CONTRACTOR under this Agreement, ii is mutually understood and agreed that
24 CONTRACTOR, including any and all of CONTRACTOR'S officers, agents, and employees will at all times
25 be acting and performing as an independent contractor, and shall act in an independent capacity and not as
26 an officer, agent, servant, employee, joint venturer, partner, or associate of the COUNTY. Furthermore,
27 COUNTY shall have no right to control or supervise or direct the manner or method by which
28 CONTRACTOR shall perform its work and function. However, COUNTY shall retain the right to administer
-4-
1 this Agreement so as to verify that CONTRACTOR is performing its obligations in accordance with the
2 terms and conditions thereof.
3 CONTRACTOR and COUNTY shall comply with all applicable provisions of law and the rules and
4 regulations, if any, of governmental authorities having jurisdiction over matters the subject thereof.
5 Because of its status as an independent contractor, CONTRACTOR shall have absolutely no right
6 to employment rights and benefits available to COUNTY employees. CONTRACTOR shall be solely liable
7 and responsible for providing to, or on behalf of, its employees all legally-required employee benefits. In
8 addition, CONTRACTOR shall be solely responsible and save COUNTY harmless from all matters relating
9 to payment of CONTRACTOR'S employees, including compliance with Social Security withholding and all
1 O other regulations governing such matters. II is acknowledged that during the term of this Agreement,
11 CONTRACTOR may be providing services to others unrelated to the COUNTY or to this Agreement.
12 7.MODIFICATION: Any matters of this Agreement may be modified from time to time by the
13 written consent of all the parties without, in any way, affecting the remainder.
14 8.NON-ASSIGNMENT: Neither party shall assign, transfer or sub-contract this Agreement
15 nor their rights or duties under this Agreement without the prior written consent of the other party.
16 9.HOLD HARMLESS: CONTRACTOR agrees to indemnify, save, hold harmless, and at
17 COUNTY'S request, defend the COUNTY, its officers, agents, and employees from any and all costs and
18 expenses (including attorney's fees and costs), damages, liabilities, claims, and losses occurring or
19 resulting to COUNTY in connection with the performance, or failure to perform, by CONTRACTOR, its
20 officers, agents, or employees under this Agreement, and from any and all costs and expenses (including
21 attorney's fees and costs), damages, liabilities, claims, and losses occurring or resulting to any person, firm,
22 or corporation who may be injured or damaged by the performance, or failure to perform, of
23 CONTRACTOR, its officers, agents, or employees under this Agreement.
24 10.INSURANCE
25 Without limiting COUNTY's right to obtain indemnification from CONTRACTOR or any third parties,
26 CONTRACTOR, at its sole expense, shall maintain in full force and effect, the following insurance policies
27 or a program of self-insurance, including but not limited to, an insurance pooling arrangement or Joint
28 Powers Agreement (JPA) throughout the term of the Agreement:
-5-
1 A.Commercial General Liability
2 Commercial General Liability Insurance with limits of not less than Two Million Dollars ($2,000,000)
3 per occurrence and an annual aggregate of Four Million Dollars ($4,000,000). This policy shall be issued on
4 a per occurrence basis. COUNTY may require specific coverages including completed operations,
5 products liability, contractual liability, Explosion-Collapse-Underground, fire legal liability, or any other
6 liability insurance deemed necessary because of the nature of this contract.
7 B.Automobile Liability
8 Comprehensive Automobile Liability Insurance with limits of not less than One Million Dollars
9 ($1,000,000.00) per accident for bodily injury and for property damages. Coverage should include any auto
10 used in connection with this Agreement.
11 C.Professional Liability
12 If CONTRACTOR employs licensed professional staff, (e.g., Ph.D., RN., L.C.S.W., M.F.C.C.) in
13 providing services, Professional Liability Insurance with limits of not less than One Million Dollars
14 ($1,000,000.00) per occurrence, Three Million Dollars ($3,000,000.00) annual aggregate.
15 D.Worker's Compensation
16 A policy of Worker's Compensation insurance as may be required by the California Labor
17 Code.
18 CONTRACTOR shall obtain endorsements to the Commercial General Liability insurance naming
19 the County of Fresno, its officers, agents, and employees, individually and collectively, as additional
20 insured, but only insofar as the operations under this Agreement are concerned. Such coverage for
21 additional insured shall apply as primary insurance and any other insurance, or self-insurance, maintained
22 by COUNTY, its officers, agents and employees shall be excess only and not contributing with insurance
23 provided under CONTRACTOR's policies herein. This insurance shall not be cancelled or changed without
24 a minimum of thirty (30) days advance writ ten notice given to COUNTY.
25 Within Thirty (30) days from the date CONTRACTOR signs and executes this Agreement,
26 CONTRACTOR shall provide certificates of insurance and endorsement as stated above for all of the
27 foregoing policies, as required herein, to the County of Fresno, County Administrative Officer, 2281 Tulare
28 Street, Room 304, Fresno, California 93721, stating that such insurance coverage have been obtained and
-6-
1 are in full force; that the County of Fresno, its officers, agents and employees will not be responsible for any
2 premiums on the policies; that such Commercial General Liability insurance names the County of Fresno,
3 its officers, agents and employees, individually and collectively, as additional insured, but only insofar as
4 the operations under this Agreement are concerned; that such coverage for additional insured shall apply
5 as primary insurance and any other insurance, or self-insurance, maintained by COUNTY, its officers,
6 agents and employees, shall be excess only and not contributing with insurance provided under
7 CONTRACTOR's policies herein; and that this insurance shall not be cancelled or changed without a
8 minimum of thirty (30) days advance, written notice given to COUNTY.
9 In the event CONTRACTOR fails to keep in effect at all times insurance coverage as herein
1 O provided, the COUNTY may, in addition to other remedies it may have, suspend or terminate this
11 Agreement upon the occurrence of such event.
12 All policies shall be issued by admitted insurers licensed to do business in the State of California,
13 and such insurance shall be purchased from companies possessing a current A.M. Best, Inc. rating of A
14 FSC VII or better.
15 11.AUDITS AND INSPECTIONS: CONTRACTOR shall at any time during business hours,
16 and as often as COUNTY may deem necessary, make available to COUNTY for examination all of its
17 records and data with respect to the matters covered by this Agreement. CONTRACTOR shall, upon
18 request by COUNTY, permit COUNTY to audit and inspect all of such records and data necessary to
19 ensure CONTRACTOR'S compliance with the terms of this Agreement.
20 If this Agreement exceeds ten thousand dollars ($10,000.00), CONTRACTOR shall be subject to
21 the examination and audit of the California State Auditor for a period of three (3) years after final payment
22 under contract (Government Code Section 8546.7).
23 12.NOTICES: The persons and their addresses having authority to give and receive notices
24 under this Agreement include the following:
COUNTY
COUNTY OF FRESNO County Administrative Officer 2281 Tulare Street, Room 304 Fresno, CA 93721
CONTRACTOR
Economic Development Corporation Lee Ann Eager 906 N Street, Suite 120 Fresno, CA 93721
25
26
27
28 All notices between COUNTY and CONTRACTOR provided for or permitted under this Agreement
-7-
1 must be in writing and delivered either by personal service, by first-class United States mail, by an overnight
2 commercial courier service, or by telephonic facsimile transmission. A notice delivered by per sonal service
3 is effective upon service to the recipient. A notice delivered by first-class United States mail is effective
4 three COUNTY business days after deposit in the United States mail, postage prepaid, addressed to the
5 recipient. A notice delivered by an overnight commercial courier service is effective one COUNTY business
6 day after deposit with the overnight commercial courier service, delivery fees prepaid, with delivery
7 instructions given for next day delivery, addressed to the recipient. A notice delivered by telephonic
8 facsimile is effective when transmission to the recipient is completed (but, if such transmission is completed
9 outside of COUNTY business hours, then such delivery shall be deemed to be effective at the next
1 O beginning of a COUNTY business day), provided that the sender maintains a machine record of the
11 completed transmission. For all claims arising out of or related to this Agreement, nothing in this section
12 establishes, waives, or modifies any claims presentation requirements or procedures provided by law,
13 including but not limited to the Government Claims Act (Division 3.6 of Title 1 of the Government Code,
14 beginning with section 810).
15 13.GOVERNING LAW: Venue for any action arising out of or relate d to this Agreement shall
16 only be in Fresno County, California.
17 The rights and obligations of the parties and all interpretation and performance of this Agreement
18 shall be governed in all respects by the laws of the State of California.
19 14.DISCLOSURE OF SELF-DEALING TRANSACTIONS
20 This provision is only applicable if CONTRACTOR is operating as a corporation (a for-profit or
21 non-profit corporation) or if during the term of the agreement, CONTRACTOR changes its status to
22 operate as a corporation.
23 Members of CONTRACTOR's Board of Directors shall disclose any self-dealing transactions that
24 they are a party to while CONTRACTOR is providing goods or performing services under this
25 Agreement. A self-dealing transaction shall mean a transaction to which CONTRACTOR is a party and
26 in which one or more of its directors has a material financial interest. Members of the Board of Directors
27 shall disclose any self-dealing transactions that they are a party to by completing and signing a Self-
28 Dealing Transaction Disclosure Form, attached as Exhibit A and incorporated by reference, and
-8-
1 submitting it to the COUNTY prior to commencing with the self-dealing transaction or immediately
2 thereafter.
3 15.ENTIRE AGREEMENT: This Agreement constitutes the entire agreement between
4 CONTRACTOR and COUNTY with respect to the subject matter hereof and supersedes all previous
5 Agreement negotiations, proposals, commitments, writings, advertisements, publications, and
6 understanding of any nature whatsoever unless expressly included in this Agreement.
7 Ill
8
9 Ill
10
11 Ill
12
13 Ill
14
15 Ill
16
17 Ill
18
19 Ill
20
21 Ill
22
23 Ill
24
25 Ill
26
27 Ill
28
-9-
1 IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the day and year
2 first hereinabove written.
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
Mailing Address
FOR ACCOUNTING USE ONLY:
ORG No.: 2540
Fund:0001
Subclass: 10000
Account No.: 7845
Requisition No.:
ATTEST:
Bernice E. Seidel
Clerk of the Board of Supervisors
County of Fresno, State of California
By: ___ S,....,1 ..... 1~ .... W><...J<._,,_~.......,~-s .... ~---------
Deputy
-10-
Exhibit A
SELF-DEALING lRANSACTION DISCLOSURE FORM
In order to conduct business with the County of Fresno (hereinafter referred to as "County"),
members of a contractor's board of directors (hereinafter referred to as "County Contractor''), must
disclose any self-dealing transactions that they are a party to while providing goods, performing
services, or both for the County. A self-dealing transaction is defined below:
"A self-dealing transaction means a transaction to which the corporation is a party and in which one
or more of its directors has a material financial interest"
The definition above will be utilized for purposes of completing this di sclosure form.
INSTRUCTIONS
(1)Enter board member's name, job title (if applicable), and date this disclosure is being made.
(2)Enter the board member's company/agency name and address.
(3)Describe in detail the nature of the self-dealing transaction that is being disclosed to the
County. At a minimum, include a description of the following:
a.The name of the agency/company with which the corporation has the transaction; and
b.The nature of the material financial interest in the Corporation's transaction that the
board member has.
(4)Describe in detail why the self-dealing transaction is appropriate based on applicable
provisions of the Corporations Code.
(5)Form must be signed by the board member that is involved in the self-dealing transaction
described in Sections (3) and (4).
Exhibit A
(1)Company Board Member Information:
Name: Date:
Job Title:
(2)Company/ Agency Name and Address:
(3)Disclosure (Please describe the nature of the self-dealing transaction you are a party to):
(4)Explain why this self-dealing transaction is consistent with the requirements of Corporations Code 5233 (a):
(5)Authorized Signature
Signature: I Date: I