Agenda Item No. 6
CITY COUNCIL STAFF REPORT
TO: Honorable Mayor and City Council DATE: November 12, 2024 FROM: Matthew Bronson, City Manager
PREPARED BY: Megan Martin, Community Development Director SUBJECT: Underwriting Services for the 2024 Community Development Block Grant (CDBG) Economic Development Microenterprise Business Assistance Program
RECOMMENDATION
Approve an agreement with Angel H. Johnstone in the amount of $151,360 for Underwriting Services to support the 2024 Community Development Block Grant (CDBG) Economic Development Microenterprise Business Assistance Program and authorize the Mayor to execute the agreement on behalf of the City.
BACKGROUND
Local governments, either directly or through State governments, are eligible to receive Community Development Block Grant (CDBG) funds on an annual basis from the U.S.
Department of Housing and Urban Development (HUD). These funds can be used for a variety of purposes including infrastructure needs, low-moderate income housing needs, and other eligible activities. The category of “other eligible activities” includes providing capital to businesses through grants or loans. The State Department of Housing and Community Development (HCD) administers the CDBG programs and publishes a Notice of Funding Availability (NOFA) for each program for eligible activities.
One allowable use of CDBG funds is to provide capital to small businesses through the establishment of loan and grant fund programs. The CDBG program provides flexibility to its recipients within the three national objectives to:
1. Principally benefit low to moderate income (LMI) persons or businesses;
2. Aid in the prevention of slums or blight; and
3. Meet an urgent community need.
The City has seen an increased interest from new businesses desiring to locate within Grover Beach, especially along West Grand Avenue. This highlights the area’s potential for economic development, however, many buildings and commercial spaces owned by private property owners within the city were constructed decades ago and do not meet modern building and construction standards, including for energy efficiency, accessibility, plumbing, and fire suppression. Bringing these properties within compliance can be cost prohibitive, and several businesses have been unable to occupy desired spaces because landlords and property owners are not able to afford these costly upgrades. This appears to be hindering economic growth in these developed commercial areas.
Staff Report: CDBG Economic Development Microenterprise Assistance Agreement Page 2 November 12, 2024
Economic Development is one of the CDBG program’s eligible activities. One of the qualifying categories under this activity is Microenterprise Assistance which provides funds for loans to LMI business owners for businesses with five or fewer workers (owner/operator and employees).
Examples include business training, financing of working capital, furniture, equipment, and property repairs/improvements.
On June 24, 2024, the Council received a presentation and public comment related to potential programs and projects for inclusion in a 2024 CDBG application and directed staff to pursue applications for three qualifying activities:
• Over-the-Counter (OTC) Program: Microenterprise Business Assistance Program, City of Grover Beach ($946,000)
• OTC Project: Ramona Garden Park Improvements, City of Grover Beach ($2.35 million) • Competitive Program: Non-Congregate Shelter Navigation Center Program, 5Cities Homeless Coalition ($300,000)
On July 22, 2024, Council further directed staff to pursue the OTC Program under specific program guidelines including but not limited to eligibility criteria and eligible activities as shown below:
Loan Details
(1) Up to $50,000 per eligible and qualifying business
(2) Low interest loans; rates scheduled at 1% - 3%
(3) Repayment period of 3 to 10 years, dependent upon the amount of the loan (4) Qualifying applications reviewed by consultant and loan committee Eligibility Criteria:
(1) LMI Business Owner
(2) Microenterprise Business (five or fewer workers; includes owner/operator) within the city
(3) Non-profit organizations are not eligible for this program (4) The business must not require a Use Permit to operate (5) Businesses in the cannabis industry, adult entertainment, or other restricted industries are not eligible
(6) Preference is given to businesses that best align with City’s economic development goals including public-serving businesses (e.g. retail or services) and manufacturing businesses
Eligible Activities:
(1) Energy Efficiency Upgrades: Improvements related to energy efficiency, such as insulation, HVAC systems, energy-efficient lighting, and windows (2) Plumbing Enhancements: Repairs or upgrades to plumbing systems, including pipes, fixtures, and water heaters; may also include enlargement or addition of restrooms to meet occupancy and accessibility requirements.
(3) Accessibility Improvements: Modifications to enhance accessibility, such as installing ramps, accessible restrooms, and other American Disability Act (ADA) compliant features.
(4) Fire Suppression and Safety Systems: Installation or upgrades of fire suppression systems, such as sprinklers, alarms, and emergency exits. (5) Signage (including permit costs), or minor cosmetic renovations. (6) Beautification or finishing projects, such as painting, and decorative elements, are not eligible.
Staff Report: CDBG Economic Development Microenterprise Assistance Agreement Page 3 November 12, 2024
Staff subsequently completed the requirements of the program to be competitive for the upcoming 2024 CDBG NOFA which was released by HCD on August 30, 2024 for approximately $30 million.
On October 29, 2024, City staff successfully submitted an OTC application for the Councildirected CDBG Microenterprise Business Assistance Program. OTC applications are considered for award on a first-come, first-served basis; timing of the submittal is critical.
Following Council direction, City staff issued a request for proposals for underwriting services to support the City’s implementation and administration of low-interest loans to qualifying businesses.
The role of the underwriter includes:
• Coordination with businesses to prepare loan applications • Facilitation of loan committee meetings
• Administration and management of grant reports pursuant to the 2024 CDBG grant contract
• Implementation of loans through the grant program
The City received one proposal from Ms. Angel H. Johnstone. This proposal was reviewed by staff from the Administrative Services and Community Development departments. The team interviewed Ms. Johnstone and found her background and experience pertaining to CDBG economic development programs (specifically business assistance and microenterprise) to be highly relevant and comprehensive. Ms. Johnstone demonstrated a strong understanding of CDBG requirements and effectively communicated strategies for managing compliance, reporting, and program delivery. Her proposal outlined clear objectives and actionable steps to support local businesses, aligning well with the City’s goals for economic growth and community support. Ms.
Johnstone’s proposal is included with the contract agreement in Attachment 1.
Staff anticipates 2024 CDBG award announcements will occur in spring 2025. Should the City receive the grant award, staff will coordinate with Ms. Johnstone to begin outreach to administer the grants to qualifying businesses. If the City does not receive the award, the contract between Ms. Johnstone and the City will become null and void. Ms. Johnstone understands and agrees to these terms.
FISCAL IMPACT
The cost of the agreement is $151,360 over the specified loan term (typically 36 months following CDBG contract award). All City costs including any staff administrative time will be reimbursed through the HCD CDBG grant to support the administration of the City’s low-interest loan program to qualifying businesses.
ALTERNATIVES
The Council has the following alternatives to consider:
1. Approve an agreement with Angel H. Johnstone in the amount of $151,360 for underwriting services to support the 2024 CDBG Economic Development Microenterprise Business Assistance Program; and authorize the Mayor to execute the agreement on behalf of the City; or
2. Do not approve the agreement; or
3. Provide alternative direction to staff.
Staff Report: CDBG Economic Development Microenterprise Assistance Agreement Page 4 November 12, 2024
PUBLIC NOTIFICATION
The agenda was posted in accordance with the Brown Act.
Attachments
1. Agreement
AGREEMENT
CITY OF GROVER BEACH, CALIFORNIA
PROFESSIONAL SERVICES
UNDERWRITING SERVICES FOR THE 2024 COMMUNITY DEVELOPMENT BLOCK GRANT
MICROENTERPRISE BUSINESS ASSISTANCE PROGRAM
THIS AGREEMENT is made and entered into effective the 12th day of November, 2024, by and between the CITY OF GROVER BEACH, a California municipal corporation (hereinafter referred to as "CITY"), and Angel H. Johnstone (hereinafter referred to as "CONSULTANT").
RECITALS
WHEREAS, CITY desires to obtain professional services for underwriting services that will support the 2024 Community Development Block Grant (CDBG) Microenterprise Assistance Program, more specifically identified in the Proposal, Scope of Work and Fee Schedule, jointly attached as “Exhibit A” to this Agreement, herein referred to as the PROJECT; and
WHEREAS, CONSULTANT is engaged in the business of Economic Development Consultant and hereby represents that it desires to and is professionally and legally capable of performing the services called for by this Agreement; and
WHEREAS, this Agreement sets forth the terms and conditions under which CONSULTANT shall provide professional services, to be paid by the City of Grover Beach; and WHEREAS, this Agreement will be administered for CITY by the Director of Community Development, hereinafter referred to as DIRECTOR or his/her designee.
AGREEMENT
NOW, THEREFORE, in consideration of the foregoing and of the covenants, conditions, and promises hereinafter contained to be kept and performed by the respective parties, it is mutually agreed as follows:
ARTICLE I. SCOPE OF SERVICES
CONSULTANT shall complete said PROJECT described herein and more fully described in Exhibit A, and in accordance with local, State and Federal laws. This shall include all work incidental to, or necessary to perform, such services even though not specifically described in Exhibit A.
ARTICLE II. COMPENSATION AND PAYMENT
A. CONSULTANT’S sole compensation for satisfactory performance of all services required or rendered pursuant to this Agreement shall be performed on a not to exceed basis of $151,360.
B. CONSULTANT shall invoice CITY on a monthly basis, via detailed statement, which will be processed and payable in the normal course of CITY business, typically within 30 days of receipt of an invoice unless otherwise identified in this Agreement.
C. The parties may modify this Agreement to increase or decrease the scope of services or provide for the rendition of services not required by this Agreement, which modification shall include an adjustment to CONSULTANT’S compensation. Any change in the scope of services must be made by written Contract Amendment to the Agreement signed by an authorized representative for each Attachment 1
party. CONSULTANT shall not be entitled to any additional compensation if services are performed prior to a signed written Contract Amendment.
D. At any time prior to issuance of final payment, the CITY may conduct a cost audit of CONSULTANT’S invoices/statements. Any payment may be reduced by amounts found by CITY not to constitute allowable costs and/or adjusted for prior overpayments or underpayments. Upon CONSULTANT’S compliance with all terms of this Agreement, City shall promptly pay any balance of allowable costs.
ARTICLE III. TERMINATION, REMEDIES, FORCE MAJEURE AND CONSOLIDATION OF DISPUTES A. This Agreement shall terminate without any liability of CITY to CONSULTANT upon the earlier of:
(i) CONSULTANT’S filing for protection under the federal bankruptcy laws, or any bankruptcy petition or petition for receiver commenced by a third party against CONSULTANT; (ii) Seven (7) calendar days written notice, with or without cause, by either the CITY or CONSULTANT;
(iii) Expiration of this Agreement.
B. Upon any termination or expiration of this Agreement, CONSULTANT shall (i) Immediately stop all work hereunder;
(ii) Immediately cause any and all of its subcontractors to cease work; and (iii) Return to CITY any and all unearned payments and all properties and materials in the possession of CONSULTANT that are owned by CITY. Subject to the terms of this Agreement, CONSULTANT shall be paid compensation for services satisfactorily performed prior to the effective date of termination. CONSULTANT shall not be paid for any work or services performed or costs incurred which reasonably could have been avoided.
C. In the event of termination due to failure of CONSULTANT to satisfactorily perform in accordance with the terms of this Agreement, CITY may withhold an amount that would otherwise be payable as an offset to, but not in excess of, CITY’S damages caused by such failure. In no event shall any payment by CITY pursuant to this Agreement constitute a waiver by CITY of any breach of this Agreement which may then exist on the part of CONSULTANT, nor shall such payment impair or prejudice any remedy available to CITY with respect to the breach.
D. Upon any breach of this Agreement by CONSULTANT, CITY may:
(i) Exercise any right, remedy (in contract, law or equity), or privilege which may be available to it under applicable laws of the State of California or any other applicable law; (ii) Proceed by appropriate court action to enforce the terms of the Agreement; and/or (iii) Recover all direct, indirect, consequential, economic and incidental damages for the breach of the Agreement. If it is determined that CITY improperly terminated this Agreement for default, such termination shall be deemed a termination for convenience.
E. CONSULTANT shall provide CITY with adequate written assurances of future performance, upon the request of the Director or his/her designee, in the event CONSULTANT fails to comply with any terms or conditions of this Agreement.
F. CONSULTANT shall be liable for default unless nonperformance is caused by an occurrence beyond the reasonable control of CONSULTANT and without its fault or negligence such as, acts of God or the public enemy, acts of CITY in its contractual capacity, fires, floods, epidemics, quarantine restrictions, strikes, unusually severe weather, and delays of common carriers. CONSULTANT shall notify the
Director or his/her designee in writing as soon as it is reasonably possible after the commencement of any excusable delay, setting forth the full particulars in connection therewith, and shall remedy such occurrence with all reasonable dispatch, and shall promptly give written notice to the Director or his/her designee of the cessation of such occurrence.
G. CONSULTANT agrees that, notwithstanding any contrary provision in this Agreement, any dispute arising from or relating to this Agreement (including, without limitation, disputes based on contract, tort, equity or statute) may, at CITY’S option, be joined and consolidated with any other dispute or disputes arising from or relating to the PROJECT so that all disputes arising from or relating to the PROJECT may be resolved in a single proceeding. CONSULTANT hereby specifically waives any objection it may otherwise have to such joinder and consolidation and specifically consents to mediation, arbitration or any other dispute resolution mechanism, forum or proceeding necessary to effectuate the joinder and consolidation contemplated by this provision.
ARTICLE IV. CONFIDENTIAL INFORMATION, OWNERSHIP OF DOCUMENTS AND COPYRIGHT LICENSE A. Any reports, information, or other data prepared or assembled by CONSULTANT pursuant to this Agreement shall not be made available to any individual or organization by CONSULTANT without the prior written approval of CITY. During the term of this Agreement, and thereafter, CONSULTANT shall not, without the prior written consent of CITY, disclose to anyone any Confidential Information. The term Confidential Information for the purposes of this Agreement shall include all proprietary and confidential information of CITY, including but not limited to business plans, marketing plans, financial information, designs, drawings, specifications, materials, compilations, documents, instruments, models, source or object codes and other information developed pursuant to this Agreement, disclosed or submitted, orally, in writing, or by any other medium or media. Confidential information shall also include any business loan applicant’s business or personal confidential information. All personal and business confidential information of loan applicants shall be kept in a locked storage facility and shall not be available to persons other than CONSULTANT or CITY. All Confidential Information shall be and remain confidential and proprietary in CITY.
B. CONSULTANT shall not reproduce (such as photographs and prints), duplicate, distribute reproductions, or incorporate into any trademark or service mark, the Confidential Information without the prior written consent of CITY. Any rights of the CONSULTANT in the Confidential Information terminate upon the death of such CONSULTANT and do not extend to such CONSULTANT’S heirs, successors or assigns.
C. Title to the Confidential Information shall pass to CITY upon final acceptance by CITY. CITY reserves the right to donate, transfer or sell the Confidential Information or any portion thereof. CITY shall have the exclusive right to publicly display the Confidential Information and shall have a license to reproduce (such as photographs and prints) or create three-dimensional reproductions of the Confidential Information for any noncommercial purpose (including, but not limited to, books, slides, postcards, film, Internet sites, reproductions for advertising, and other media). Prior to public display, the CITY shall consider the sensitive nature and potential security risk of releasing the information to the general public. Such reproductions shall contain if legally necessary a copyright notice. Reproductions for commercial purposes are only to be made with the mutual written consent of CONSULTANT and CITY. All references and reproductions or adaptations of the Confidential Information will credit the Confidential Information to the CONSULTANT unless CONSULTANT requests to the contrary. CITY reserves the right to modify, remove and/or relocate the Confidential Information at any time, and after consultation with CONSULTANT, shall have the right to determine when and if modifications, repairs and/or restorations are needed. If City makes modifications, repairs or restoration not approved by the CONSULTANT, the
CONSULTANT shall have the right to sever its association with the Confidential Information.
CONSULTANT agrees to give CITY written notice prior to asserting any claim pertaining to the Confidential Information, and CITY shall have not less than 90 days from the date of receipt of claim to cure any such claim. CITY may incorporate the Confidential Information into any trademark or service mark to be utilized by City to register the same in accordance with Federal, state or local law.
D. If CONSULTANT should subcontract all or any portion of the services to be performed under this Agreement, CONSULTANT shall cause each subcontractor to also comply with the requirements of this Article (IV).
This Article (IV) shall survive expiration or termination of this Agreement.
ARTICLE V. PROFESSIONAL SKILL
It is further mutually understood and agreed by and between the parties hereto that inasmuch as CONSULTANT represents to CITY that CONSULTANT and its subcontractors, if any, are skilled in the profession and shall perform in accordance with the standards of said profession necessary to perform the services agreed to be done by it under this Agreement, CITY relies upon the skill of CONSULTANT and any subcontractors to do and perform such services in a skillful manner and CONSULTANT agrees to thus perform the services and require the same of any subcontractors. Therefore, any acceptance of such services by CITY shall not operate as a release of CONSULTANT or any subcontractors from said professional standards.
ARTICLE VI. INDEMNIFICATION AND DEFENSE
A. Indemnification and Defense for Professional Services: To the fullest extent permitted by law, CONSULTANT shall indemnify, defend and hold harmless CITY and any and all of its officers, officials, employees, agents and volunteers (“Indemnified Parties”) from and against any and all claims, losses, liabilities, damages, costs and expenses, including legal counsel’s fees and costs, to the extent they arise out of, pertain to, or relate to the negligence, recklessness, or willful misconduct of the CONSULTANT. CONSULTANT’S duty to defend shall consist of reimbursement of defense costs incurred by CITY in direct proportion to the CONSULTANT’S proportionate percentage of fault.
CONSULTANT’S percentage of fault shall be determined, as applicable, by a court of law, jury or arbitrator. In the event any loss, liability or damage is incurred by way of settlement or resolution without a court, jury or arbitrator having made a determination of the CONSULTANT’S percentage of fault, the parties agree to mediation with a third party neutral to determine the CONSULTANT’S proportionate percentage of fault for purposes of determining the amount of indemnity and defense cost reimbursement owed to the CITY.
B. For All Other Liabilities: Notwithstanding the foregoing and without diminishing any rights of CITY under this Article (V), for any liability, claim, demand, allegation against CITY arising out of, related to, or pertaining to any act or omission of CONSULTANT, but which is not a design professional service, CONSULTANT shall defend, indemnify, and hold harmless CITY, its officials, employees, and agents (“Indemnified Parties”) from and against any and all damages, costs, expenses (including reasonable attorney fees and expert witness fees), judgments, settlements, and/or arbitration awards, whether for personal or bodily injury, property damage, or economic injury, and arising out of, related to, any concurrent or contributory negligence on the part of the CITY, except for the sole or active negligence of, or willful misconduct of the CITY.
C. If CONSULTANT should subcontract all or any portion of the services to be performed under this Agreement, CONSULTANT shall require each subcontractor to indemnify, hold harmless and defend
CITY and each of its officers, officials, employees, agents and volunteers in accordance with the terms of the preceding paragraph.
This Article (VI) shall survive termination or expiration of this Agreement.
ARTICLE VII. INSURANCE
A. Throughout the life of this Agreement, CONSULTANT shall pay for and maintain in full force and effect all insurance as required in Exhibit B, which is incorporated into and part of this Agreement, with an insurance company(ies) either:
(i) Admitted by the California Insurance Commissioner to do business in the State of California and rated no less than “A-VII” in the Best’s Insurance Rating Guide; or (ii) As may be authorized in writing by CITY'S Administrative Services Director, or his/her successor, or his/her designee at any time and in his/her sole discretion. The required policies of insurance as stated in Exhibit B shall maintain limits of liability of not less than those amounts stated therein.
B. If at any time during the life of the Agreement or any extension, CONSULTANT or any of its subcontractors/sub-consultants fail to maintain any required insurance in full force and effect, all services and work under this Agreement shall be discontinued immediately, and all payments due or that become due to CONSULTANT shall be withheld until notice is received by CITY that the required insurance has been restored to full force and effect and that the premiums therefore have been paid for a period satisfactory to CITY. Any failure to maintain the required insurance shall be sufficient cause for CITY to terminate this Agreement. No action taken by CITY pursuant to this Article (VII) shall in any way relieve CONSULTANT of its responsibilities under this Agreement. The phrase “fail to maintain any required insurance” shall include, without limitation, notification received by CITY that an insurer has commenced proceedings, or has had proceedings commenced against it, indicating that the insurer is insolvent.
C. The fact that insurance is obtained by CONSULTANT shall not be deemed to release or diminish the liability of CONSULTANT, including, without limitation, liability under the indemnity provisions of this Agreement. The duty to indemnify CITY shall apply to all claims and liability regardless of whether any insurance policies are applicable. The policy limits do not act as a limitation upon the amount of indemnification to be provided by CONSULTANT. Approval or purchase of any insurance contracts or policies shall in no way relieve from liability nor limit the liability of CONSULTANT, its principals, officers, agents, employees, persons under the supervision of CONSULTANT, vendors, suppliers, invitees, consultants, sub-consultants, subcontractors, or anyone employed directly or indirectly by any of them.
D. If CONSULTANT should subcontract all or any portion of the services to be performed under this Agreement, CONSULTANT shall require each subcontractor/sub-consultant to provide insurance protection, as an additional insured, to the CITY and each of its officers, officials, employees, agents and volunteers in accordance with the terms of this section, except that any required certificates and applicable endorsements shall be on file with CONSULTANT and CITY prior to the commencement of any services by the subcontractor. CONSULTANT and any subcontractor/sub-consultant shall establish additional insured status for CITY, its officers, officials, employees, agents and volunteers.
ARTICLE VIII. CONFLICT OF INTEREST AND NON-SOLICITATION A. Prior to CITY’S execution of this Agreement, CONSULTANT shall complete a City of Grover Beach Conflict of Interest Disclosure Statement in the form as set forth in Exhibit C. During the term of this Agreement, CONSULTANT shall have the obligation and duty to immediately notify CITY in writing of any change to the information provided by CONSULTANT in such statement.
B. CONSULTANT shall comply, and require its subcontractors to comply, with all applicable (i) Professional canons and requirements governing avoidance of impermissible client conflicts; and
(ii) Federal, state and local conflict of interest laws and regulations including, without limitation, California Government Code Section 1090 et. seq., the California Political Reform Act (California Government Code Section 87100 et. seq.), and the regulations of the Fair Political Practices Commission concerning disclosure and disqualification (2 California Code of Regulations Section 18700 et. seq.).
At any time, upon written request of CITY, CONSULTANT shall provide a written opinion of its legal counsel and that of any subcontractor that, after a due diligent inquiry, CONSULTANT and the respective subcontractor(s) are in full compliance with all laws and regulations. CONSULTANT shall take, and require its subcontractors to take, reasonable steps to avoid any appearance of a conflict of interest. Upon discovery of any facts giving rise to the appearance of a conflict of interest, CONSULTANT shall immediately notify CITY of these facts in writing.
C. In performing the work or services to be provided hereunder, CONSULTANT shall not employ or retain the services of any person while such person either is employed by CITY or is a member of any CITY council, commission, board, committee, or similar CITY body. This requirement may be waived in writing by the City Manager, if no actual or potential conflict is involved.
D. CONSULTANT represents and warrants that it has not paid or agreed to pay any compensation, contingent or otherwise, direct or indirect, to solicit or procure this Agreement or any rights/benefits hereunder.
E. Neither CONSULTANT, nor any of CONSULTANT’S subcontractors performing any services on this Project, shall bid for, assist anyone in the preparation of a bid for, or perform any services pursuant to, any other contract in connection with this Project. CONSULTANT and any of its subcontractors shall have no interest, direct or indirect, in any other contract with a third party in connection with this Project unless such interest is in accordance with all applicable law and fully disclosed to and approved by the City Manager, in advance and in writing.
F. If CONSULTANT should subcontract all or any portion of the work to be performed or services to be provided under this Agreement, CONSULTANT shall include the provisions of this Article in each subcontract and require its subcontractors to comply therewith.
This Article (VIII) shall survive termination or expiration of this Agreement.
ARTICLE IX. GENERAL TERMS
A. Except as otherwise provided by law, all notices expressly required of CITY within the body of this Agreement, and not otherwise specifically provided for, shall be effective only if signed by the Director or his/her designee.
B. Records of CONSULTANT’S expenses pertaining to the Project shall be kept on a generally recognized accounting basis and shall be available to CITY or its authorized representatives upon request during regular business hours throughout the life of this Agreement and for a period of three years after final payment or, if longer, for any period required by law. In addition, all books, documents, papers, and records of CONSULTANT pertaining to the PROJECT shall be available for the purpose of making audits, examinations, excerpts, and transcriptions for the same period of time. If any litigation, claim, negotiations, audit or other action is commenced before the expiration of said time period, all records shall be retained and made available to CITY until such action is resolved, or until the end of said time period whichever shall later occur. If CONSULTANT should subcontract all or any portion of the services to be performed under this Agreement, CONSULTANT shall cause each subcontractor to also comply with the requirements of this paragraph. This Article IX(B) shall survive expiration or termination of this Agreement.
C. Prior to execution of this Agreement by CITY, CONSULTANT shall have provided evidence to CITY that CONSULTANT is licensed to perform the services called for by this Agreement (or that no license is required). CONSULTANT and any subcontractors shall agree to obtain any local licensing or certifications necessary to perform services within the City, including but not limited to City Business Tax Certificates. If CONSULTANT should subcontract all or any portion of the work or services to be performed under this Agreement, CONSULTANT shall require each subcontractor to provide evidence to CITY that subcontractor is licensed to perform the services called for by this Agreement (or that no license is required) before beginning work.
ARTICLE X. NONDISCRIMINATION
To the extent required by controlling federal, state and local law, CONSULTANT shall not employ discriminatory practices in the provision of services, employment of personnel, or in any other respect on the basis of race, religious creed, color, national origin, ancestry, physical disability, mental disability, medical condition, marital status, sex, age, ethnicity, status as a disabled veteran or veteran of the Vietnam era. Subject to the foregoing and during the performance of this Agreement, CONSULTANT agrees as follows:
A. CONSULTANT will comply with all applicable laws and regulations providing that no person shall, on the grounds of race, religious creed, color, national origin, ancestry, physical disability, mental disability, medical condition, marital status, sex, age, sexual orientation, ethnicity, status as a disabled veteran or veteran of the Vietnam era be excluded from participation in, be denied the benefits of, or be subject to discrimination under any program or activity made possible by or resulting from this Agreement.
B. CONSULTANT will not discriminate against any employee, applicant for employment, or business loan applicant because of race, religious creed, color, national origin, ancestry, physical disability, mental disability, medical condition, marital status, sex, age, sexual orientation, ethnicity, gender identification, status as a disabled veteran or veteran of the Vietnam era. CONSULTANT shall ensure that applicants are treated, without regard to their race, religious creed, color, national origin, ancestry, physical disability, mental disability, medical condition, marital status, sex, age, sexual orientation, ethnicity, gender identification, status as a disabled veteran or veteran of the Vietnam era. Such requirement shall apply to CONSULTANT’S employment practices including, but not be limited to, the following: employment, upgrading, demotion or transfer; recruitment or recruitment advertising; layoff or termination; rates of pay or other forms of compensation; and selection for training, including apprenticeship. CONSULTANT agrees to post in conspicuous places, available to
employees and applicants for employment, notices setting forth the provision of this nondiscrimination clause.
C. CONSULTANT will, in all solicitations or advertisements for employees placed by or on behalf of CONSULTANT in pursuit hereof, state that all qualified applicants will receive consideration for employment without regard to race, religious creed, color, national origin, ancestry, physical disability, mental disability, medical condition, marital status, sex, age, sexual orientation, ethnicity, status as a disabled veteran or veteran of the Vietnam era.
D. CONSULTANT will send to each labor union or representative of workers with which it has a collective bargaining agreement or other contract or understanding, a notice advising such labor union or workers' representatives of CONSULTANT’S commitment under this section and shall post copies of the notice in conspicuous places available to employees and applicants for employment.
E. If CONSULTANT should subcontract all or any portion of the services to be performed under this Agreement, CONSULTANT shall cause each subcontractor to also comply with the requirements of this Article (X).
ARTICLE XI. INDEPENDENT CONTRACTOR
A. In the furnishing of the services provided for herein, CONSULTANT is acting solely as an independent contractor. Neither CONSULTANT, nor any of its officers, agents or employees shall be deemed an officer, agent, employee, joint venture, partner or associate of CITY for any purpose. CITY shall have no right to control or supervise or direct the manner or method by which CONSULTANT shall perform its work and functions. However, CITY shall retain the right to administer this Agreement so as to verify that CONSULTANT is performing its obligations in accordance with the terms and conditions thereof.
B. This Agreement is not evidence of a partnership or joint venture between CONSULTANT and CITY.
CONSULTANT shall have no authority to bind CITY absent CITY’S express written consent. Except to the extent otherwise provided in this Agreement, CONSULTANT shall bear its own costs and expenses in pursuit thereof.
C. Because of its status as an independent contractor, CONSULTANT and its officers, agents and employees shall have absolutely no right to employment rights and benefits available to CITY employees. CONSULTANT shall be solely liable and responsible for all payroll and tax withholding and for providing to, or on behalf of, its employees all employee benefits including, without limitation, health, welfare and retirement benefits. In addition, together with its other obligations under this Agreement, CONSULTANT shall be solely responsible, indemnify, defend and save CITY harmless from all matters relating to employment and tax withholding for and payment of CONSULTANT'S employees, including, without limitation:
(i) Compliance with Social Security and unemployment insurance withholding, payment of workers’ compensation benefits, and all other laws and regulations governing matters of employee withholding, taxes and payment; and
(ii) Any claim of right or interest in CITY employment benefits, entitlements, programs and/or funds offered employees of CITY whether arising by reason of any common law, de facto, leased, or co-employee rights or other theory. It is acknowledged that during the term of this Agreement, CONSULTANT may be providing services to others unrelated to CITY or to this Agreement.
ARTICLE XII. NOTICES
All notices, including notices of address changes, required to be sent hereunder shall be in writing and shall be deemed to have been given when mailed to the addresses listed below:
A. CITY: City of Grover Beach, Megan Martin, Community Development Director], 154 South Eighth Street, Grover Beach, CA 93433
B. CONSULTANT: Angel H. Johnstone, Economic Development Consultant, 3541 Bloomfield Lane, Clovis, CA 93619
ARTICLE XIII. BINDING
Subject to Article XII, below, once this Agreement is signed by all parties, it shall be binding upon, and shall inure to the benefit of, all parties, and each parties' respective heirs, successors, assigns, transferees, agents, servants, employees and representatives.
ARTICLE XIV. ASSIGNMENT
A. This Agreement is personal to CONSULTANT and there shall be no assignment by CONSULTANT of its rights or obligations under this Agreement without the prior written approval of the Grover Beach City Council. Any attempted assignment by CONSULTANT, its successors or assigns, shall be null and void unless approved by the Grover Beach City Council.
B. CONSULTANT hereby agrees not to assign the payment of any monies due CONSULTANT from CITY under the terms of this Agreement to any other individual(s), corporation(s) or entity(ies). CITY retains the right to pay any and all monies due CONSULTANT directly to CONSULTANT.
ARTICLE XV. COMPLIANCE THE LAW
In providing the services required under this Agreement, CONSULTANT shall at all times comply with all applicable laws of the United States, the State of California and CITY, and with all applicable regulations promulgated by federal, state, regional, or local administrative and regulatory agencies, now in force and as they may be enacted, issued, or amended during the term of this Agreement.
ARTICLE XVI. COMPLIANCE WITH COMMUNITY DEVELOPMENT BLOCK GRANT REGULATIONS In providing the services required under this Agreement, CONSULTANT shall ensure that all services comply with all applicable Community Development Block Grant (“CDBG”) regulations including, but not limited to, the Economic Development Grant/Loan Program requirements included in this Agreement as Exhibit D.
ARTICLE XV. WAIVER
The waiver by either party of a breach by the other of any provision of this Agreement shall not constitute a continuing waiver or a waiver of any subsequent breach of either the same or a different provision of this Agreement. No provisions of this Agreement may be waived unless in writing and signed by all parties to this Agreement. Waiver of any one provision herein shall not be deemed to be a waiver of any other provision herein.
ARTICLE XVI. GOVERNING LAW AND VENUE
This Agreement shall be governed by, and construed and enforced in accordance with, the laws of the State of California, excluding, however, any conflict of laws rule which would apply the law of another
jurisdiction. Venue for purposes of the filing of any action regarding the enforcement or interpretation of this Agreement and any rights and duties hereunder shall be San Luis Obispo County, California.
ARTICLE XVII. HEADINGS
The section headings in this Agreement are for convenience and reference only and shall not be construed or held in any way to explain, modify or add to the interpretation or meaning of the provisions of this Agreement.
ARTICLE XVIII. SEVERABILITY
The provisions of this Agreement are severable. The invalidity, or unenforceability of any one provision in this Agreement shall not affect the other provisions.
ARTICLE XIX. INTERPRETATION
The parties acknowledge that this Agreement in its final form is the result of the combined efforts of the parties and that, should any provision of this Agreement be found to be ambiguous in any way, such ambiguity shall not be resolved by construing this Agreement in favor of or against either party, but rather by construing the terms in accordance with their generally accepted meaning.
ARTICLE XX. ATTORNEY’S FEES
If either party is required to commence any proceeding or legal action to enforce or interpret any term, covenant or condition of this Agreement, the prevailing party in such proceeding or action shall be entitled to recover from the other party its reasonable attorney's fees and legal expenses.
ARTICLE XXI. EXHIBITS
Each exhibit and attachment referenced in this Agreement is, by the reference, incorporated into and made a part of this Agreement
ARTICLE XXII. PRECEDENCE OF DOCUMENTS
In the event of any conflict between the body of this Agreement and any Exhibit or Attachment hereto, the terms and conditions of the body of this Agreement shall control and take precedence over the terms and conditions expressed within the Exhibit or Attachment. Furthermore, any terms or conditions contained within any Exhibit or Attachment hereto which purport to modify the allocation of risk between the parties, provided for within the body of this Agreement, shall be null and void.
ARTICLE XXIII. CUMULATIVE REMEDIES
No remedy or election hereunder shall be deemed exclusive but shall, wherever possible, be cumulative with all other remedies at law or in equity.
ARTICLE XXIV. NO THIRD-PARTY BENEFICIARIES
The rights, interests, duties and obligations defined within this Agreement are intended for the specific parties hereto as identified in the preamble of this Agreement. Notwithstanding anything stated to the contrary in this Agreement, it is not intended that any rights or interests in this Agreement benefit or flow to the interest of any third parties.
ARTICLE XXV. EXTENT OF AGREEMENT
Each party acknowledges that they have read and fully understand the contents of this Agreement and any documents issued that resulted in selection of CONSULTANT for entry into this Agreement. This
Agreement represents the entire and integrated agreement between the parties with respect to the subject matter hereof and supersede all prior negotiations, representations or agreements, either written or oral. This Agreement may be modified only by written instrument duly authorized and executed by both CITY and CONSULTANT.
AGREEMENT SIGNATURES
CITY OF GROVER BEACH, CALIFORNIA
PROFESSIONAL CONSULTANT SERVICES
UNDERWRITING SERVICES FOR THE 2024 COMMUNITY DEVELOPMENT BLOCK GRANT
MICROENTERPRISE BUSINESS ASSISTANCE PROGRAM
IN WITNESS WHEREOF, the parties hereto have entered into this Agreement effective as of the day and year first written above.
CITY OF GROVER BEACH
Karen Bright, Mayor Date
Attest:
Wendi Sims, City Clerk Date
Approved as to Form:
Robert Lomeli, City Attorney Date
CONSULTANT
Angel H. Johnstone, Owner Date
Attachments:
1. Exhibit A - Scope of Services and Fee Schedule
2. Exhibit B - Insurance Requirements
3. Exhibit C - Disclosure of Conflict of Interest
4. Exhibit D - Economic Development Grant/Loan Program Guidelines
EXHIBIT A
PROFESSIONAL CONSULTANT SERVICES
CONSULTANT SCOPE OF WORK AND FEE SCHEDULE
D. PROPOSED SCHEDULE OF WORK:
1. Identify community/business needs
Contact the City, local chamber, local groups, etc. and gather information about who may be potential business loan/grant candidates or potential business sectors in the greatest need of financial assistance.
2. Identify how the loan and or grant program will address the business financial needs
Call and meet with potential applicants to discuss how and if the program can meet their business needs.
3. Work with the business to prepare the loan application Assist the business with completing the loan application and all necessary financials. Provide them with the tools in order to properly complete all necessary documents.
4. Facilitate loan committee meetings
Set a date with most loan committee members in order to review the applications. Provide the loan members the materials prior to the meeting for adequate review time.
5. Serve as a liaison between community/city/HCD
Provide the city with updates on current and potential applicants.
Discuss loan packages with the city at the loan meeting.
Keep the city and applicants informed about the progress of their project at all times.
6. Identify the grants reports and milestones that must be met throughout the grant contract
Keep the city informed an all grant reporting deadlines and identify who will be accomplishing each item.
7. Implement loan / grant program
Per all listed items discussed above.
I personally come and meet with clients and the city on an as needed basis with no minimum or maximum meetings.
Phased milestones will be based once the grant is awarded and a more concrete timeline can be assessed from the standard agreement contract date. Although, my rule of thumb is at least 70% of total funds expended during the first half of the grant's timeline.
E. I AGREE TO ALL CDBG STANDARD CLAUSES INCLUDED IN TIDS RFP UNDER FEDERAL TERMS AND CONDITIONS.
F. I ACKNOWLEDGE THAT THE STANDARD CONTRACT FOR THE CITY OF
GROVER BEACH IS ACCEPTABLE AS PRESENTED OR AS AMENDED,
INCLUDING THAT I CAN MEET THE CITY'S INSURANCE
RERQUIREMENTS.
G. I ACKNOWLEGE THAT THE CONTRACT WITH THE CITY OF GROVER
BEACH WILL ONLY BE VALID IF THE CITY IS AW AD RED THE FUNDS FOR THE PROPOSED ACTIVITY.
CONSULTANT SCOPE OF WORK AND FEE SCHEDULE
TOTAL FUNDING FOR PROGRAM
MICROLOANS
ACTIVITY DELIVERY – ANGEL JOHNSTONE’S FEE
GENERAL ADMINISTRATION
$946,000.00
$732,752.15
$151,360.00
$61,887.85
The City can manage this general admin area, have consultant manage it, or a combination of both.
EXHIBIT B
PROFESSIONAL CONSULTANT SERVICES
INSURANCE REQUIREMENTS
Without limiting CONSULTANT’S indemnification of CITY, and prior to commencement of Work, CONSULTANT shall obtain, provide and maintain at its own expense during the term of this Agreement, policies of insurance of the type and amounts described below and in a form satisfactory to CITY.
General liability insurance. CONSULTANT shall maintain commercial general liability insurance with coverage at least as broad as Insurance Services Office form CG 00 01, in an amount not less than $1,000,000 per occurrence, $2,000,000 general aggregate, for bodily injury, personal injury, and property damage. The policy must include contractual liability that has not been amended. Any endorsement restricting standard ISO “insured contract” language will not be accepted.
Automobile liability insurance. CONSULTANT shall maintain automobile insurance at least as broad as Insurance Services Office form CA 00 01 covering bodily injury and property damage for all activities of the CONSULTANT arising out of or in connection with Work to be performed under this Agreement, including coverage for any owned, hired, non-owned or rented vehicles, in an amount not less than $1,000,000 combined single limit for each accident.
Professional liability (errors & omissions) insurance. CONSULTANT shall maintain professional liability insurance that covers the Services to be performed in connection with this Agreement, in the minimum amount of $1,000,000 per claim and in the aggregate. Any policy inception date, continuity date, or retroactive date must be before the effective date of this Agreement and Consultant agrees to maintain continuous coverage through a period no less than three (3) years after completion of the services required by this Agreement.
Workers’ compensation insurance. CONSULTANT shall maintain Workers’ Compensation Insurance (Statutory Limits) and Employer’s Liability Insurance (with limits of at least $1,000,000).
Note: Workers' compensation and employer's liability insurance requirements may be eliminated for certain sole proprietorships, partnerships, or corporations without employees.
Consultant shall submit to CITY, along with the certificate of insurance, a Waiver of Subrogation endorsement in favor of CITY, its officers, agents, employees and volunteers.
Umbrella or excess liability insurance. CONSULTANT shall obtain and maintain an umbrella or excess liability insurance policy with limits that will provide bodily injury, personal injury and property damage liability coverage at least as broad as the primary coverages set forth above, including commercial general liability, automobile liability, and employer’s liability. Such policy or policies shall include the following terms and conditions:
• A drop down feature requiring the policy to respond if any primary insurance that would otherwise have applied proves to be uncollectible in whole or in part for any reason; • Pay on behalf of wording as opposed to reimbursement; • Concurrency of effective dates with primary policies; • Policies shall “follow form” to the underlying primary policies; and • Insureds under primary policies shall also be insureds under the umbrella or excess policies.
Other provisions or requirements
Proof of insurance. CONSULTANT shall provide certificates of insurance to CITY as evidence of the insurance coverage required herein, along with a waiver of subrogation endorsement for workers’ compensation. Insurance certificates and endorsements must be approved by CITY’s Risk Manager prior to commencement of performance. Current certification of insurance shall be kept on file with CITY at all times during the term of this contract. CITY reserves the right to require complete, certified copies of all required insurance policies, at any time.
Duration of coverage. CONSULTANT 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 CONSULTANT, his agents, representatives, employees or subconsultants.
Primary/noncontributing. Coverage provided by CONSULTANT shall be primary and any insurance or selfinsurance procured or maintained by CITY shall not be required to contribute with it. The limits of insurance required herein may be satisfied by a combination of primary and umbrella or excess insurance.
Any umbrella or excess insurance shall contain or be endorsed to contain a provision that such coverage shall also apply on a primary and non-contributory basis for the benefit of CITY before the CITY’S own insurance or self-insurance shall be called upon to protect it as a named insured.
CITY’S rights of enforcement. In the event any policy of insurance required under this Agreement does not comply with these specifications or is canceled and not replaced, CITY has the right but not the duty to obtain the insurance it deems necessary and any premium paid by CITY will be promptly reimbursed by CONSULTANT or CITY will withhold amounts sufficient to pay premium from Consultant payments. In the alternative, CITY may cancel this Agreement.
Acceptable insurers. All insurance policies shall be issued by an insurance company currently authorized by the Insurance Commissioner to transact business of insurance or is on the List of Approved Surplus Line Insurers in the State of California, with an assigned policyholders’ Rating of A- (or higher) and Financial Size Category Class VI (or larger) in accordance with the latest edition of Best’s Key Rating Guide, unless otherwise approved by the CITY’S Risk Manager.
Waiver of subrogation. All insurance coverage maintained or procured pursuant to this agreement shall be endorsed to waive subrogation against CITY, its elected or appointed officers, agents, officials, employees and volunteers or shall specifically allow CONSULTANT or others providing insurance evidence in compliance with these specifications to waive their right of recovery prior to a loss. CONSULTANT hereby waives its own right of recovery against CITY, and shall require similar written express waivers and insurance clauses from each of its subconsultants.
Enforcement of contract provisions (non estoppel). CONSULTANT acknowledges and agrees that any actual or alleged failure on the part of the CITY to inform CONSULTANT of non-compliance with any requirement imposes no additional obligations on the CITY nor does it waive any rights hereunder.
Requirements not limiting. Requirements of specific coverage features or limits contained in this Section are not intended as a limitation on coverage, limits or other requirements, or a waiver of any coverage normally provided by any insurance. Specific reference to a given coverage feature is for purposes of clarification only as it pertains to a given issue and is not intended by any party or insured to be all inclusive, or to the exclusion of other coverage, or a waiver of any type. If the Consultant maintains higher limits than the minimums shown above, the CITY requires and shall be entitled to coverage for the higher
limits maintained by the CONSULTANT. Any available insurance proceeds in excess of the specified minimum limits of insurance and coverage shall be available to the CITY.
Notice of cancellation. CONSULTANT agrees to oblige its insurance agent or broker and insurers to provide to CITY with a thirty (30) day notice of cancellation (except for nonpayment for which a ten (10) day notice is required) or nonrenewal of coverage for each required coverage.
Additional insured status. General liability policies shall provide or be endorsed to provide that CITY and its officers, officials, employees, and agents, and volunteers shall be additional insureds under such policies. This provision shall also apply to any excess/umbrella liability policies.
Prohibition of undisclosed coverage limitations. None of the coverages required herein will be in compliance with these requirements if they include any limiting endorsement of any kind that has not been first submitted to CITY and approved of in writing.
Separation of insureds. A severability of interests provision must apply for all additional insureds ensuring that Consultant’s insurance shall apply separately to each insured against whom claim is made or suit is brought, except with respect to the insurer’s limits of liability. The policy(ies) shall not contain any crossliability exclusions.
Pass through clause. CONSULTANT agrees to ensure that its subconsultants, subcontractors, and any other party involved with the project who is brought onto or involved in the project by CONSULTANT, provide the same minimum insurance coverage and endorsements required of CONSULTANT.
CONSULTANT agrees to monitor and review all such coverage and assumes all responsibility for ensuring that such coverage is provided in conformity with the requirements of this section. CONSULTANT agrees that upon request, all agreements with consultants, subcontractors, and others engaged in the project will be submitted to CITY for review.
CITY’s right to revise specifications. The CITY reserves the right at any time during the term of the contract to change the amounts and types of insurance required by giving the CONSULTANT ninety (90) days advance written notice of such change. If such change results in substantial additional cost to the CONSULTANT, the CITY and Consultant may renegotiate CONSULTANT’S compensation.
Self-insured retentions. Any self-insured retentions must be declared to and approved by CITY. CITY reserves the right to require that self-insured retentions be eliminated, lowered, or replaced by a deductible. Self-insurance will not be considered to comply with these specifications unless approved by CITY.
Timely notice of claims. CONSULTANT shall give CITY prompt and timely notice of claims made or suits instituted that arise out of or result from CONSULTANT’S performance under this AGREEMENT, and that involve or may involve coverage under any of the required liability policies.
Additional insurance. CONSULTANT shall also procure and maintain, at its own cost and expense, any additional kinds of insurance, which in its own judgment may be necessary for its proper protection and prosecution of the work.
EXHIBIT C
PROFESSIONAL CONSULTANT SERVICE
CITY OF GROVER BEACH
DISCLOSURE OF CONFLICT OF INTEREST
EXHIBIT D
PROFESSIONAL CONSULTANT SERVICES
ECONOMIC DEVELOPMENT GRANT/LOAN PROGRAM GUIDELINES