1 ADMINISTRATIVE SERVICES AGREEMENT
(SPLASH Program)
THIS ADMINISTRATIVE SERVICES AGREEMENT (the “Agreement”) is effective on 18th day of November, 2022 (“Effective Date”), by and between the CITY OF SAN PABLO, a municipal corporation of the State of California (the “City”) and the San Pablo Economic Development Corporation, a California nonprofit public benefit corporation (“SPEDC”).
Recitals
A. SPEDC is a California nonprofit public benefit corporation formed for the purpose of providing charitable training, educational and other service assistance to the general public for the purposes of furthering its mission to stabilize, diversify and grow the local economy through business and workforce development.
B. On behalf of the City, SPEDC engages in comprehensive business retention and recruitment efforts designed to attract business and jobs to San Pablo, to retain its existing business and employment base, and to enhance economic productivity of real property within the City.
C. San Pablo City Council adopted the SPLASH program on November 16, 2020 and approved a contract with SPEDC via Resolution 2020-149, to serve as the program administrator.
D. The City desires to continue a first -time homebuyer loan program to promote affordable homeownership opportunities in the City and to retain SPEDC to provide administrative services in connection therewith. The first-time homebuyer loan program is identified as the “San Pablo Loan Assistance for Sustainable Housing (SPLASH) Program.”
Agreements
NOW THEREFORE, in consideration of the foregoing and of the mutual covenants and agreements hereinafter expressed, the parties mutually agree as follows:
Section 1. Services.
a. Services. Subject to the terms and conditions set forth in this Agreement, SPEDC shall provide administrative services to the City in connection with the City’s SPLASH program, specifically those services associated with the “Program Administrator” and “Loan Administrator” identified in the SPLASH program guidelines, which guidelines are attached to this Agreement as Exhibit A. It is expected that SPEDC’s administrative services will include, but are not limited to, the following:
i. Affirmative marketing of the SPLASH program;
ii. Certification of eligible applicants according to SPLASH program criteria; 2 iii. Loan underwriting and preparation and execution of all applicable loan documents;
iv. Communication and coordination with the Credit Committee and the City’s identified liaison concering all proposed loans; and
v. Monitoring and collection activities with respect to all completed loans. b. Compliance of Applicable Laws. SPEDC shall comply with all laws applicable to the performance of the services. To the extent that this Agreement may be funded by fiscal assistance from another governmental entity, SPEDC shall comply with all applicable rules and regulations to which City is bound by the terms of such fiscal assistance program.
c. Nondiscrimination and Equal Opportunity. SPEDC shall not discriminate, on the basis of a person’s race, religion, color, national origin, age, phyiscal or mental handicap or disability, medical condition, marital status, sex, sexual orientation or any other legally protected status, against any employee, applicant for employment, subcontractor, bidder for a subcontract, or participant in, recipient of, or applicant for any services or programs provided by SPEDC under this Agreement. SPEDC shall comply with all applicable federal, state, and local laws, policies, contracting, and the provision of any services that are the subject of this Agreement, including but not limited to the satisfaction of any positive obligations required of SPEDC.
SPEDC shall include the provisions of this subsection in any subcontract.
d. COVID-19 Pandemic. All services must be in compliance with current health orders issued by Contra Costa County Health Services at: https://www.coronavirus.cchealth.org/health- orders.
e. Labor Code Compliance. If the Services are “public works” services as defined in Labor Code section 1720 et seq. and the Agreement is for an amount greater than $1,000, the Agreement is subject to all applicable requirements of Chapter 1 of Part 7 of Division 2 of the Labor Code, beginning at section 1720, and the related regulations, including but not limited to requirements pertaining to wages, working hours and workers’ compensation insurance.
Consultant must also post all job site notices required by laws or regulations pursuant to Labor Code section 1771.4.
1. Prevailing Wages: Each worker performing Services under this Agreement that is covered under Labor Code section 1720 or 1720.9, must be paid at a rate not less than the prevailing wage as defined in sections 1771 and 1774 of the Labor Code. The prevailing wage rates are on file with the City and are available online at http://www.dir.ca.gov/DLSR. Pursuant to Labor Code section 1775, Consultant and any subconsultant will forfeit to City as a penalty up to $200 for each calendar day, or portion of a day, for each worker paid less than the applicable prevailing wage rate, in addition to paying each worker the difference between the applicable wage rate and the amount actually paid.
3 2. Working Day: Pursuant to Labor Code section 1810, eight hours of labor consists of a legal day’s work. Pursuant to Labor Code section 1813, Consultant will forfeit to City as a penalty the sum of $25 for each day during which a worker employed by Consultant or any subconsultant is required or permitted to work more than eight hours during any one calendar day, or more than 40 hours per calendar week, unless such workers are paid overtime wages under Labor Code section 1815. All Services must be carried out during regular City working days and hours unless otherwise specified in the scope of services or authorized in writing by City.
3. Payroll Records: Consultant and its subconsultants must maintain certified payroll records in compliance with Labor Code sections 1776 and 1812, and all implementing regulations promulgated by the Department of Industrial Relations (“DIR”). For each payroll record, Consultant and its subconsultants must certify under penalty of perjury that the information in the record is true and correct, and that it has complied with the requirements of Labor Code sections 1771, 1811, and 1815. Unless the Agreement is for an amount under $25,000, Consultant must electronically submit certified payroll rec ords to the Labor Commissioner as required under California law and regulations.
4. Apprentices: If the amount of the Agreement is $30,000 or more, Consultant must comply with the apprenticeship requirements in Labor Code section 1777.5.
5. DIR Monitoring, Enforcement, and Registration: The Services are subject to compliance monitoring and enforcement by the DIR pursuant to Labor Code section 1725.5, and, subject to the exception set forth below, Consultant and any subconsultants must be registered with the DIR to perform public works projects.
The registration requirements of Labor Code section 1725.5 do not apply if the Agreement is for an amount under $25,000.
f. No assignment or subcontracting. SPEDC shall not assign or subcontract these services without City’s written consent.
g. City Liaison. City’s Assistant City Manager, or such other alternate City staff member identified in writing by City Manager, shall by City’s liaison for services under this Agreement. The Credit Committee is identified in the SPLASH program guidelines (Exhibit A).
Section 2. Term of Services. The term of this Agreement shall begin on the Effective Date and continue through November 17, 2024, unless earlier terminated as provided for in Section
14. Section 3. Standard of Performance . SPEDC represents that it has the requisite experience, qualifications and skills necessary to perform the required services. SPEDC shall assign appropriate personnel to perform the services required by this Agreement.
4 Section 4. Time of Performance. SPEDC shall devote such time to the performance of services required by this Agreement as may be reasonably necessary to satisfy the SPEDC’s obligations hereunder.
Section 5. Compensation. As compensation for its services under this Agreement, SPEDC shall be entitled to the administration fees described in the SPLASH program guidelines (Exhibit A) and to the sum of Two Thousand Five Hunded Dollars ($2,500) for each funded loan and One Thousa nd Dollars ($1,000) for every loan that is paid -off. SPEDC shall also be compensated for reimbursable expenses such as advertising costs associated with marking activites or attorney’s fees associated with collection activities, provided, however, that SPEDC shall obtain written approval from the City for any reimbursable expenses that will total $3,000 or mor e.
Reimbursable expenses do not include ordinary copying, mailing, phone calls or typical computer work. The parties agre e that compensation hereunder is intended to include the costs of contributions to any pensions and/or annuities to which SPEDC and its employees, agents, and subcontractors may be eligible and that the City therefore has no responsibility for such contributions beyond compensation required under this Agreement.
Section 6. Invoices. SPEDC shall submit invoices, not more often than once a month during the term of the Agreement, based on the cost for services performed and reimbursable expenses incurred prior to the invoice date. Invoices shall be signed by an authorized representative of SPEDC and shall contain the following information:
a. Serial identification of progress bills, i.e., Progress Bill No. 1 fo the invoice, etc.;
b. The beginning and ending dates of the billing period; and
c. Description of the services performed, time spent performing the services and identity of person performing the services.
Section 7. Payment Schedule. The City shall have 30 days from its receipt of an invoice that compies with all the requirements of Section 6 to pay SPEDC. SPEDC is soley responsible for the payment of employment taxes incurred under this Agreement and any similar federal or state taxes. If damages are sustained by the City as a result of breach or default by SPEDC, the City may withhold payment(s) to SPEDC for the purpose of set-off until such time as the exact amount of damages due the City from SPEDC may be determined.
Section 8. Facilities and Equipment. Except as set forth herein, SPEDC shall, at its sole cost and expense, provide all facilities and equipment that may be necessary to perform the services required by this Agreement. The City shall make available to SPEDC only the facilities and equipment listed in this section, and only under the terms and conditions set forth herein.
a. The City shall furnish physical facilities such as desks, filing cabinets, and conference space, as may be reasonably necessary for SPEDC’s use while consulting with City employees and reviewing records and the information in possession of the City. 5 b. The location, quantity, and time of the City furnishing the facilities described in subsection 8(a) shall be in the sole discretion of the City. In no event shall the City be obligated to furnish any facility that may involve incurring any direct expense to the City , including but not limited to computer, long- distance telephone or other communication charges, vehicles, and reproduction facilities.
Section 9. Insurance Requirements . Before beginning any work under this Agreement, SPEDC, at its own cost and expense, shall procure insurance against claims for injuries to persons or damages to property that may arise from or in connection with the performance of the work by SPEDC and its agents, representatives, employees, and subcontractors. SPEDC shall provide proof satisfactory to the City of such insurance that meets the requirements of this section and under forms of insurance satisfactory in all respects to the City. SPEDC shall maintain the insurance policies required by this secti on throughout the term of this Agreement . SPEDC shall not allow any subcontractor to commence work on any subcontract until SPEDC has obtained all insurance required herein for the subcontractor(s) and provided evidence thereof to the City.
Verification of the required insurance shall be submitted and made part of this Agreement prior to execution. Insurers shall have an A.M. Best's rating of no less than A:VII unless otherwise accepted by the City in writing:
a. 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 $2,000,000 per occurrence. If a general ag gregate limit applies, either the general aggregate limit shall apply separately to this Agreement or the general aggregate limit shall be twice the required occurrence limit.
b. Automobile Liability Insurance. ISO Form Number CA 00 01 covering any aut o (Code 1), or if SPEDC has no owned autos, hired, (Code 8) and non- owned autos (Code 9), with limit no less than $1,000,000 per accident for bodily injury and property damage.
c. Workers' Compensation Insurance . A s 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.
d. Other Insurance Provisions. The insurance policies are to contain, or be endorsed to contain, the following provisions:
(1) Additional Insured Status. 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 SPEDC 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 SPEDC’s insurance (at least as broad as ISO Form CG 20 10 11 85 or if not available, through the addition of both CG 20 10 and CG 20 37 if a later edition is used).
6 (2) Primary Coverage. For any claims related to this contract, SPEDC’s insurance coverage shall be primary insurance as respects the City, its officers, officials, employees, and volunteers. Any insurance or self -insurance maintained by the City, its officers, officials, employees, or volunteers shall be excess of SPEDC’s insurance and shall not contribute with it.
(3) Notice of Cancellation. Each insurance policy required above shall provide that coverage shall not be canceled, except with notice to the City.
(4) Waiver of Subrogation. SPEDC hereby grants to the City a waiver of any right to subrogation which any insurer of SPEDC may acquire against the City by virtue of the payment of any loss under such insurance. SPEDC 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.
(5) Deductibles and Self -Insured Retentions. Any deductibles or self -insured retentions must be declared to and approved by the City. The City may require SPEDC to purchase coverage with a lower deductible or retention or provide proof of ability to pay losses and related investigations, claim administration, and defense expenses within the retention.
(6) Claims made policies. If any of the required policies provide claims-made coverage:
(a) The Retroactive Date must be shown, and must be before the effective date of this Agreement or the beginning of work hereunder.
(b) Insurance must be maintained and evidence of insurance must be provided for at least five (5) years after completion of the work under this Agreement.
(c) If coverage is canceled or non -renewed, and not replaced with another claims-made policy form with a Retroactive Date prior to the effective date of this Agreement , SPEDC must purchase “extended reporting” coverage for a minimum of five (5) years after completion of the work under this Agreement.
e. Certificate of Insurance and Endorsements . SPEDC shall furnish the City with original certificates and amendatory endorsements or copies of the applicable policy language effecting coverage required by this clause. All certificates and endorsements are to be received and approved by the City before wor k commences. However, failure to obtain the required documents prior to the work beginning shall not waive SPEDC’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.
7 f. Subcontractors. SPEDC shall include all subcontractors as insured under its polices or shall furnish separate certificates and endorsements for each subcontractor. All coverages for subcontractors shall be subject to all of the requirements stated in this Agreement, including but not limited to naming additional insureds.
g. Higher Limits. If SPEDC maintains higher limits than the minimums shown above, the City requires and shall be entitled to coverage for the higher limits maintained by SPEDC .
Any available insurance proceeds in excess of the specified minimum limits of insurance and coverage shall be available to the City.
h. Special Risks or Circumstances . 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.
i. Remedies. In addition to any other remedies the City may have if SPEDC fails to provide or maintain any insurance policies or policy endorsements to the extent and within the time herein required, the City may, at its sole option exercise any of the following remedies, which are alternatives to other remedies the City may have and are not the exclusive remedy for SPEDC’s breach:
(1) Obtain such insurance and deduct and retain the amount of the premiums for such insurance from any sums due under this Agreement;
(2) Order SPEDC to stop work under this Agreement or withhold an y payment that becomes due to SPEDC hereunder, or both stop work and withhold any payment, until SPEDC demonstrates compliance with the requirements hereof; and/or
(3) Terminate this Agreement.
Section 10. Indemnification.
SPEDC shall, to the fullest e xtent permitted by law, indemnify, defend (with counsel acceptable to the City) and hold harmless the City, and its employees, officials, volunteers and agents ("Indemnified Parties") from and against any and all losses, claims, damages, costs and liability arising out of any personal injury, loss of life, damage to property, or any violation of any federal, state, or municipal law or ordinance, arising out of or resulting from the performance of this Agreement by SPEDC , its officers, employees, agents, vol unteers, or subcontractors, excepting only liability arising from the sole negligence, active negligence or intentional misconduct of the City.
In the event that the SPEDC or any employee, agent, or subcontractor of SPEDC providing services under this Agreement is determined by a court of competent jurisdiction or the California Public Employees Retirement System (PERS) to be eligible for enrollment in PERS as an employee of the City, SPEDC shall indemnify, defend, and hold harmless the City for the payment of any employee and/or employer contributions for PERS benefits on behalf of SPEDC or its 8 employees, agents, or subcontractors, as well as for the payment of any penalties and interest on such contributions, which would otherwise be the responsibility of the City.
Acceptance by the City of insurance certificates and endorsements required under this Agreement does not relieve SPEDC from liability under this indemnification and hold harmless clause. This indemnification and hold harmless clause shall apply to any damages or claims for damages whether or not such insurance policies shall have been determined to apply.
By execution of this Agreement, SPEDC acknowledges and agrees to the provisions of this Section, that it is a material element of consideration, and that these provisions survive the termination of this Agreement.
Section 11. Status of SPEDC.
a. Independent Contractor. At all times during the term of this Agreement, SPEDC shall be an independent contractor and shall not be an employee of the City. The City shall have the right to control SPEDC only insofar as the results of SPEDC’s services rendered pursuant to this Agreement; however, otherwise the City shall not have the right to control the means by which SPEDC accomplishes services rendered pursuant to this Agreement.
Notwithstanding any other City, state, or federal pol icy, rule, regulation, law, or ordinance to the contrary, SPEDC and any of its employees, agents, and subcontractors providing services under this Agreement shall not qualify for or become entitled to, and hereby agree to waive any and all claims to, any compensation, benefit, or any incident of employment by the City, including but not limited to eligibility to enroll in the California Public Employees Retirement System (PERS) as an employee of the City and entitlement to any contribution to be paid by the City for employer contributions and/or employee contributions for PERS benefits.
b. No Agency. Except as the City may specify in writing, SPEDC shall have no authority, express or implied, to act on behalf of the City in any capacity whatsoever as an agent. SPEDC shall have no authority, express or implied, pursuant to this Agreement to bind the City to any obligation whatsoever.
Section 12. Legal Requirements.
a. Governing Law . The laws of the State of California shall govern this Agreement.
b. Compliance with Applicable Laws . SPEDC and any subcontractors shall comply with all laws applicable to the performance of the work hereunder.
c. Other Governmental Regulations. To the extent that this Agreement may be funded by fiscal assistance from an other governmental entity, SPEDC and any subcontractors shall comply with all applicable rules and regulations to which the City is bound by the terms of such fiscal assistance program.
9 d. Nondiscrimination and Equal Opportunity. SPEDC shall not discriminate, on the basis of a person’s race, religion, color, national origin, age, physical or mental handicap or disability, medical condition, marital status, sex, sexual orientation or any other legally protected status, against any employee, applicant for e mployment, subcontractor, bidder for a subcontract, or participant in, recipient of, or applicant for any services or programs provided by the SPEDC under this Agreement. SPEDC shall comply with all applicable federal, state, and local laws, policies, rul es, and requirements related to equal opportunity and nondiscrimination in employment, contracting, and the provision of any services that are the subject of this Agreement, including but not limited to the satisfaction of any positive obligations required of SPEDC thereby.
SPEDC shall include the provisions of this subsection in any subcontract.
Section 13. Termination and Modification.
a. Termination. Either party may cancel this Agreement at any time and without cause upon written notification to the other. In the event of termination, SPEDC shall be entitled to compensation for services performed to the effective date of termination; the City, however, may condition payment of such compensation upon SPEDC delivering to the City any or all documents, photographs, computer software, video and audio tapes, and other materials provided to SPEDC or prepared by or for SPEDC or the City in connection with this Agreement.
b. Extension. The City may, in its sole and exclusive discretion, extend the end date of this Agreement beyond that provided for in Section 2. Any such extension shall require a written amendment to this Agreement, as provided for herein.
c. Amendments. The parties may amend this Agreement only by a writing signed by all the parties.
d. Survival. All obligations arising prior to the termination or expiration of this Agreement and all provisions of this Agreement allocating liability between the City and SPEDC shall survive the termination or expiration of this Agreement.
e. Options upon Breach by SPEDC. If SPEDC materially breaches any of the terms of this Agreement, the City’s remedies shall include, but not be limited to, the following:
(1) The City may immediately terminate this Agreement; and/or
(2) The City shall retain all plans, reports, documents and records of any kind prepared by SPEDC pursuant to this Agreement.
Section 14. Keeping and Status of Records.
a. Records Created as Part of SPEDC’s Performance. All reports, data, maps, models, charts, studies, surveys, photographs, memoranda, plans, studies, specifications, records, files, or any other documents or materials, in electronic or any other form, that SPEDC prepares 10 or obtains pursuant to this Agreement and that relate to the matters covered hereunder shall be the property of the City. SPEDC hereby agrees to deliver those documents to the City upon termination of this Agreement. It is understood and agreed that the documents and other materials, including but not limited to those described above, prepared pursuant to this Agreement are prepared specifically for the City and are not necessarily suitable for any future or other use.
b. Confidentiality. All reports, data, maps, models, charts, studies, surveys, photographs, memoranda, plans, studies, specifications, records, files, or any other documents or materials, in electronic or any other form, that SPEDC prepares or obtains pursuant to this Agreement and that relate to the matters covered hereunder shall be kept confidential by SPEDC.
Such materials shall not, without the prior written permission of City, be used by SPEDC for any purpose other than the performance of this Agreement nor shall such m aterials be disclosed publicly. Nothing furnished to SPEDC which is otherwise known to the SPEDC or is generally known, shall be deemed confidential.
c. SPEDC’s Books and Records. SPEDC shall maintain any and all ledgers, books of account, invoices, vouchers, canceled checks, and other records or documents evidencing or relating to charges for services or expenditures and disbursements charged to the City under this Agreement for a minimum of three (3) years, or for any longer period required by law, from the date of final payment to SPEDC to this Agreement.
d. Inspection and Audit of Records. Any records or documents that this Agreement requires SPEDC to maintain shall be made available for inspection, audit, and/or copying at any time during regular business hours, upon oral or written request of the City. Under California Government Code Section 8546.7, if the amount of public funds expended under this Agreement exceeds TEN THOUSAND DOLLARS ($10,000.00), this Agreement shall be subject to the examination and audit of the State Auditor, at the request of the City or as part of any audit of the City, for a period of three (3) years after final payment under this Agreement.
Section 15. Miscellaneous Provisions.
a. Venue. In the event that either party brings any action against the other under this Agreement, the parties agree that trial of such action shall be vested exclusively in the state courts of California in the County of Contra Costa or in the United States District Court for the Northern District of California.
b. Severability. If a court of competent jurisdiction finds or rules that any provision of this Agreement is invalid, void, or unenforceable, the provisions of this Ag reement not so adjudged shall remain in full force and effect. The invalidity in whole or in part of any provision of this Agreement shall not void or affect the validity of any other provision of this Agreement.
c. No Implied Waiver of Breach. The waiv er of any breach of a specific provision of this Agreement does not constitute a waiver of any other breach of that term or any other term of this Agreement.
11 d. Successors and Assigns . The provisions of this Agreement shall inure to the benefit of and shall apply to and bind the successors and assigns of the parties.
e. Conflict of Interest. SPEDC shall not employ any official of the City in the work performed pursuant to this Agreement. No officer or employee of the City shall have any financial interest in this Agreement that would violate California Government Code Section 1090 et seq.
f. Inconsistent Terms. If the terms or provisions of this Agreement conflict with or are inconsistent with any term or provision of any attachment or e xhibit attached hereto, then the terms and provisions of this Agreement shall prevail.
g. Notices. Any written notice to SPEDC shall be sent to:
Executive Director
San Pablo Economic Development Corporation
1000 Gateway Dr.
San Pablo, CA 94806
Any written notice to the City shall be sent to:
Assistant City Manager
City of San Pablo
1000 Gateway Dr.
San Pablo, CA 94806
Notices given by personal delivery shall be effective immediately upon receipt. Notices given by mail shall be deemed to have been delivered forty-eight hours after having been deposited in the United States mail with all required postage prepaid thereon. Notices given by nationally recognized overnight courier, by priority overnight service, shall be deemed delivered one (1) business day after deposit with that courier. Each party shall provide the other party with telephone and written notice of any change in address as soon as practicable.
h. Integration. This Agreement and all attachments represent the entire and integrated agreement between the City and SPEDC and supersede all prior negotiations, representations, or agreements regarding the services to be provided hereunder , either written or oral.
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12 IN WITNESS WHEREOF, the City and SPEDC have caused this Agreement to be executed on their behalf by their respective officers thereunto duly authorized, as of the date first written above.
APPROVED AS TO FORM: CITY OF SAN PABLO
A Municipal Corporation
By _______________________________ By ___________________________________ Teresa L. Stricker, City Attorney Matt Rodriguez, City Manager
Dated: _______________________________
SAN PABLO ECONOMIC DEVELOPMENT
CORPORATION, a California nonprofit public
benefit corporation
By ___________________________________
Leslay Choy, Executive Director
Dated ________________________________
ATTEST:
By _______________________________ Dated ________________________________ Dorothy Gantt, City Clerk
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