PROFESSIONAL SERVICES AGREEMENT
THIS AGREEMENT is made and entered into this November 15, 2022 by and between the City of Marysville, a municipal corporation (“City”), and Yuba-Sutter Economic Development Corporation (“YSEDC”).
RECITALS:
1. The American Rescue Plan Act of 2021 (ARPA) was signed into law by the President of The United States on March 11, 2021. The U.S. Department of Treasury established the Coronavirus State and Local Fiscal Recovery Fund (SLFRF) to provide state, local and tribal governments with the resources needed to respond to the pandemic and its economic effects. The City of Marysville will receive a total allocation of approximately $3.07 million in funds with disbursement, that began in 2021. The U.S. Department of the Treasury released a final rule and related guidance on January 6, 2021, outlining the appropriate uses of the ARPA funds.
2. The ARPA final rule encourages local governments to provide assistance to “households, small businesses, and non-profits, or aid to impacted industries such as tourism, travel, and hospitality”. The final rule recognizes that “many Americans remain unemployed, out of the labor force, or unable to pay their bills” due to the economic impacts of COVID-19. Furthermore, the final rule provides as an eligible use of payments from the fund, efforts to “sustain and strengthen the economic recovery, maintain vital public services, and make investments that support long-term growth, opportunity, and equity”.
3. The City of Marysville plans to utilize a portion of its American Rescue Plan Act (ARPA) funding to offer Façade Improvement Grants up to $10,000 and/or Marketing Planning grants up to $5,000 to businesses in the Central Business District. The program goal is to enhance the aesthetic appeal of the corridor and improve business performance through visible external property improvements and/or through customized marketing planning. This may serve as a pilot program with potential expansion to other districts within the City.
AGREEMENT:
City and YSEDC agree as follows:
1. Scope of Services. YSEDC shall perform the scope of services outline in Attachment A.
2. Term of Agreement. This Agreementshall commence on the date of signing and shall terminate on December 31, 2023.
3. Compensation. City shall pay YSEDC $100,000 to be distributed to qualifying businesses in amounts up to $10,000 per business for the Façade Improvement Grant; $5,000 per business for the Marketing Grant or Forgiveness of the Small Business Emergency Economic Relief Loan Program up to $3,000. City shall pay YSEDC an amount equal to ten percent (10%) of total Program grants disbursed by YSEDC for administration of the Program, not to exceed $10,000. Maximum compensation for this agreement shall not exceed $110,000.
4. Payment Schedule. City shall pay YSEDC $100,000 to fund Program grants and administrative cost within 15 days after this agreement has been signed by all parties. YSEDC shall return to City any unspent and unearned funds, including administration funds within 15 days after termination of this agreement on December 31, 2023, or pursuant to Section 17 of this agreement, whichever comes first.
5. Notices. All invoices, notices, or other documents concerning this Agreement shall be served as follows:
If to the City:
City of Marysville
Jim Schaad
City Manager
526 C Street
Marysville, CA 95901
Telephone: (530) 749-3902
If to YSEDC:
Yuba-Sutter Economic Development Corporation
Brynda Stranix
President
950 Tharp Road, Suite 1303
Yuba City, CA 95993
Telephone (530) 751-8555
6. Independent Contractor. It is understood and agreed, and is the intention of the parties hereto, that YSEDC is an independent contractor, and not the employee or agent of City for any purpose other than that specifically stated in this agreement. City shall have no right to and shall not control the manner or prescribe the method by which the professional services are performed by YSEDC herein, except as are expressly provided for herein. YSEDC shall be entirely and solely responsible for its acts and the acts of its agents, employees, and subcontractors while engaged in the performance of services hereunder. YSEDC shall have no claim under this Agreement or otherwise against City for vacation pay, sick leave, retirement benefits, Social Security, workers compensation, disability, or unemployment insurance benefits or other employee benefits of any kind. The parties acknowledge that City shall not withhold from YSEDC’s compensation any funds for income tax, FICA, disability insurance, unemployment insurance or similar withholding and YSEDC is solely responsible for the timely payment of all such taxes and related payments to the state and federal governments, for itself and for its employees, agents, and subcontractors who might render services in connection with this Agreement. The YSEDC shall inform all persons who perform any services pursuant to this Agreement of the provisions of this section.
In the event that YSEDC’s or any subcontractor’s activities under this Agreement are found by any state or federal agency to be those of an employee rather than an independent contractor, YSEDC agrees to indemnify City and hold City harmless for any damages, costs, fees, penalties, or taxes imposed upon it pursuant to the Internal Revenue Code, state and federal tax, employment orretirementlaws, including but not limited to any penalties and interest which City may be assessed by such state or federal agency for failing to withhold from the compensation paid to YSEDC underthis Agreement any amount which may have been required to be withheld by law.
If requested by City, YSEDC further agrees that it shall provide to City documentation, including copies of income tax returns, satisfactory to the City evidencing payment by YSEDC of state and federal income and other employment related taxes for any tax year during which services are rendered pursuant to this Agreement.
7. Subcontracting and Assignment. YSEDC shall not subcontract or assign any portion of the work to be performed under this Agreement without the prior written consent of City.
8. Ownership of Work Product. All technical data, evaluations, plans, specifications, reports, documents, or other work products of YSEDC produced under this agreement shall become the property of the City and shall be delivered to the City upon completion of services. YSEDC may retain copies for its files and internal use, however, YSEDC shall not disclose any of the work product of this Agreement to any third party, person, or entity, without prior written consent of the City. Upon reasonable notice, City representatives shall have access to the work for purposes of inspecting same and determining that the work is being performed in accordance with the terms of the Agreement. YSEDC may not publish information obtained in connection with services rendered under this Agreement.
9. Indemnification. YSEDC shall indemnify, defend, and hold harmless City, its officers, employees, and agents from any and all claims, loss, costs, expenses (including, but not limited to, attorney’s fees and costs incurred by the City), injury, or damage caused by the negligent acts or omissions or intentional tortious conduct of YSEDC, its employees, officers, or agents, or any of its subcontractors used in performance of this Agreement.
10.Insurance. Without limiting YSEDC’s indemnification of the City, YSEDC shall provide and maintain at its own expense during the term of this Agreement the insurance coverages and provisions as described below. All Certificates of Insurance shall be sent to the address for the City stated in Section 4.
A. YSEDC shall procure and maintain for the duration of the contract insurance against claims for injuries to persons or damages to property which may arise from or in connection with the performance of the work hereunder by the YSEDC, its agents, representatives, or employees. Coverage shall be at least as broad as:
(i) Commercial General Liability (CGL): Insurance Services Office Form CG 00 01 covering CGL on an “occurrence” basis, including products and completed operations, property damage, bodily injury and personal & advertising injury with limits no less than $1,000,000 per occurrence. If a general aggregate limit applies, either the general aggregate limit shall apply separately to this project/location (ISO CG 25 03 or 25 04) or the general aggregate limit shall be twice the required occurrence limit.
(ii) Automobile Liability: Insurance Services Office Form Number CA 0001 covering, Code 1 (any auto), or if YSEDC has no owned autos, Code 8 (hired) and 9 (nonowned), with limit no less than $1,000,000 per accident for bodily injury and property damage.
(iii) Workers’ Compensation insurance as required by the State of California, with Statutory Limits, and Employer’s Liability Insurance with limit of no less than $1,000,000 per accident for bodily injury or disease. (Not required if YSEDC provides written verification it has no employees).
(iv) Professional Liability (Errors and Omissions) Insurance appropriates to the YSEDC’s profession, with limit no less than $2,000,000 per occurrence or claim, $2,000,000 aggregate.
(v) If the YSEDC maintains broader coverage and/or higher limits than the minimums shown above, the City requires and shall be entitled to the broader coverage and/or the higher limits maintained by the YSEDC. Any available insurance proceeds in excess of the specified minimum limits of insurance and coverage shall be available to the City.
B. The insurance policies are to contain, or be endorsed to contain, the following provisions:
(i) The City, its officers, officials, employees, and volunteers are to be covered as additional insureds on the CGL policy with respect to liability arising out of work or operations performed by or on behalf of the YSEDC including materials, parts, or equipment furnished in connection with such work or operations. General liability coverage can be provided in the form of an endorsement to the YSEDC’s insurance (at least as broad as ISO Form CG 20 10 11 85 or both CG 20 10, CG 20 26, CG 20 33, or CG 20 38; and CG 20 37 forms if later revisions used).
(ii) For any claims related to this contract, the YSEDC’s insurance coverage shall be primary insurance primary coverage at least as broad asISO CG 20 01 04 13 as respects the City, its officers, officials, employees, and volunteers. Any insurance or selfinsurance maintained by the City, its officers, officials, employees, or volunteers shall be excess of the YSEDC’s insurance and shall not contribute with it. (iii) Each insurance policy required above shall state that coverage shall not be canceled, except with notice to the City.
(iv) YSEDC hereby grants to the City a waiver of any right to subrogation which any insurer of said YSEDC may acquire against the City by virtue of the payment of any loss under such insurance. YSEDC agrees to obtain any endorsement that may be necessary to affect this waiver of subrogation, but this provision applies regardless of whether or not the City has received a waiver of subrogation endorsement from the insurer. (v) Self-insured retentions must be declared to and approved by the City. The Citymay require the YSEDC to provide proof of ability to pay losses and related investigations, claim administration, and defense expenses within the retention. The policy language shall provide, or be endorsed to provide, that the self-insured retention may be satisfied by either the named insured or the City.
(vi) Insurance is to be placed with insurers authorized to conduct business in the state with a current A.M. Best’s rating of no less than A:VII, unless otherwise acceptable to the City.
(vii) If any of the required policies provide coverage on a claims-made basis:
1. The Retroactive Date must be shown and must be before the date of the contract or the beginning of contract work.
2. Insurance must be maintained, and evidence of insurance must be provided for at least five (5) years after completion of the contract of work.
3. If coverage is canceled or non-renewed, and not replaced with another claims-made policy form with a Retroactive Date prior to the contract effective date, the YSEDC must purchase “extended reporting” coverage for a minimum of five (5) years after completion of contract work. (viii) YSEDC shall furnish the City with original Certificates of Insurance including all amendatory endorsements (or copies of the applicable policy language effecting coverage required by this clause) and a copy of the Declarations and Endorsement Page of the CGL policy listing all policy endorsements to City before work begins.
However, failure to obtain the required documents prior to the work beginning shall not waive the YSEDC’s obligation to provide them. The City reserves the right to require complete, certified copies of all required insurance policies, including endorsements required by these specifications, at any time. (ix) YSEDC shall require and verify that all subcontractors maintain insurance meeting all the requirements stated herein, and Contractor shall ensure that the City is an additional insured on insurance required from subcontractors. (x) The City reserves the right to modify these requirements, including limits, based on the nature of the risk, prior experience, insurer, coverage, or other special circumstances.
11. Professional Services: The work shall be performed and completed in a professional manner.
All services shall be performed in the manner and according to the professional standards observed by a competent practitioner of the profession in which YSEDC and any subcontractors are engaged.
12. Responsibility of YSEDC. YSEDC shall be solely responsible for the quality and accuracy of its work and the work of its YSEDCs performed in connection with this Agreement. Any review, approval, or concurrence therewith by the City shall not be deemed to constitute acceptance or waiver by the City of any error or omission as to such work.
YSEDC shall coordinate the activities of all subcontractors and is responsible to ensure that all work products are consistent with one another to produce a unified, workable, and acceptable whole functional product.
YSEDC shall adhere to and require all grant recipients to adhere to all federal, state, and local laws, rules and regulations specific to receipt of CARES Act funds, including but not limited to, adherence with the Single Audit Act (31 U.S.C. §§ 7501-7507) and related provisions of Uniform Guidance (2 C.F.R. §200.303 regarding internal controls, §§200.330 through 200.332 regarding subrecipient monitoring and management, and subpart F regarding audit requirements) and 23 U.S.C. §3201(e) (judgment liens).
City shall promptly notify YSEDC of any defect in YSEDC’s performance.
13. Audit. The following audit requirements apply from the effective date of this Agreement until five years after City’s final payment:
A. YSEDC shall allow City’s authorized representatives access during normal business hours to inspect, audit, and copy YSEDC’s records as needed to evaluate and verify any invoices, payments, and claims that YSEDC submits to City or that any payee of YSEDC submits to YSEDC in connection with this Agreement. “Records” includes, but is not limited to, correspondence, accounting records, subcontractor files, change order files, and any other supporting evidence relevant to the invoices, payments, or claims.
B. City and YSEDC shall be subject to the examination and audit of the State Auditor, at the request of City or as part of any audit of City. Such examinations and audits shall be confined to matters connected with the performance of this Agreement, including but not limited to, administration costs.
This section shall survive the expiration or termination of this Agreement.
14. Publication of Documents and Data. YSEDC shall not publish or disclose to any third-party documents or data without the prior written consent of the City. However, submission or distribution to meet legal requirements, or for other purposes authorized by this Agreement, shall not be construed as publication in derogation of the rights of either the City or YSEDC.
15. Interest of YSEDC. YSEDC covenants that it has at the time of the execution of this Agreement, no interest, and that itshall not acquire any interest in the future, direct or indirect, which would conflict in any manner with the performance of services required to be performed pursuant to this Agreement. YSEDC further covenants that in the performance of this work, no person having any such interest shall be employed.
16. Employment Practices. YSEDC, by execution of this Agreement, certifies that it does not discriminate against any person upon the basis of race, color, creed, national origin, age, sex, disability, marital status, or any other status protected by federal, state, or local law, in its employment practices.
17. Termination. Either party shall have the right to terminate this Agreement at any time by serving upon the other party ten (10) days advance written notice of termination. The notice shall be deemed served and effective for all purposes on the date it is deposited in the United States mail, postage prepaid and addressed to the City or YSEDC at the address indicated in Section 5. In the event of termination:
A. YSEDC shall immediately cease rendering services pursuant to this Agreement.
B. YSEDC shall deliver to the City copies all approved applications and records, by individual business, including name and contact information of business, and amount granted.
C. YSEDC shall return any funds that have not been distributed in the form of grants meeting the criteria in Section 1 of this agreement and the five percent administrative fee associated with any undisbursed grant funds.
18. Jurisdiction. This Agreementshall be administered and interpreted under the laws of the State of California and any action brought hereunder shall be brought in the Superior Court in and for the City of Marysville.
19. Conflict with Laws or Regulations/Severability. This Agreement issubject to all applicable laws and regulations. If any provision of this Agreement is found by any court or other legal authority, or is agreed by the parties, to be in conflict with any code or regulation governing its subject, the conflicting provision shall be considered null and void. If the effect of nullifying any conflicting provision is such that a material benefit of the Agreement to either party is lost, the Agreement may be terminated at the option of the affected party. In all other cases, the remainder of the Agreementshall continue in full force and effect.
20. Waivers. Waiver of a breach or default under this Agreement shall not constitute a continuing waiver or a waiver of a subsequent breach of the same or any other provision of this Agreement.
21. Amendments. Modifications or amendments affecting the proposed scope of work that result in an adjustment of the compensation under this Agreement, shall be in writing and executed by both parties.
22. Entire Agreement. This Agreement, all exhibits attached hereto, all other terms or provisions incorporated herein by reference, and any notice to proceed issued in accordance with the terms hereof constitute the entire Agreement and understanding between the City and YSEDC as to the subject matter hereof.
23. Successors and Assigns. This Agreement shall be binding upon and shall inure to the benefit of any successors to or assigns of the parties.
24. Construction. This Agreement reflects the contributions of both parties and accordingly the provisions of Civil Code section 1654 shall not apply in interpreting this Agreement.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be duly executed as of day that the last party has signed the agreement.
CITY OF MARYSVILLE Yuba-Sutter Economic
Development Corporation
By: By:
Jim Schaad Brynda Stranix, President
City Manager YSEDC
DATE: DATE:
APPROVED AS TO FORM:
By:
City Attorney
Attachment A
Scope of Services for Professional Services Agreement
BUSINESS FAÇADE/MARKETING GRANT PROGRAM
YSEDC will:
1. Work with City staff to develop guidelines, evaluations criteria and application forms
2. Issue notice of grant availability via various media/social media outlets
3. Answer questions from applicants during application period/process
4. Evaluate applications for completeness and against evaluation criteria
5. Process payments/reimbursements to grantees
6. Track and report progress of awards, disbursement of funds and fund balance
7. Provide documentation on grantee expenditures to City Finance personnel and invoice for services as appropriate
8. Verify that grantees have successfully completed elements listed in their proposals and close out grants when completed
9. Provide City Council a final report