HomeMy WebLinkAboutEconomic Development Corporation - Service Agreement - 7-1-2022SERVICE AGREEMENT
CITY OF FRESNO, CALIFORNIA
THIS AGREEMENT is made and entered into, effective on
by and between the CITY OF FRESNO, a California municipal co'rploration (CITY), and
ECONOMIC DEVELOPMENT CORPORATION SERVING FRESNO COUNTY (EDC), a
California nonprofit corporation (Service Provider).
RECITALS
WHEREAS, CITY desires to obtain business attraction, promotion, expansion and
retention services for economic development (Project); and
WHEREAS, the CITY recognizes the importance of a balanced and diversified economy
as one of its most important priorities for ensuring the future well-being of the citizens of
Fresno; and
WHEREAS, the CITY recognizes that market competitive economic development
services require a collaborative partnership of local economic development agencies to
gain market visibility, and ultimately, to create jobs; and
WHEREAS, the CITY and EDC agree to exchange ideas and information to ensure
continuity, clarity and cost-effective services for existing and prospective employers in
Fresno; and
WHEREAS, the EDC continues to maintain regional, national, and international marketing
and promotional efforts to attract the location and expansion of businesses and industries
in all of the communities within Fresno County, while also providing technical assistance
to its member agencies; and
WHEREAS, the CITY desires to secure such services, and allocates funds to the EDC
for the purpose of implementing and administering certain local economic development
activities such as advocacy, marketing and promotion and technical support for the CITY
through the EDC in business attraction, expansion and retention goals to create on going
employment opportunities for residents; and
WHEREAS, the EDC recognizes that the generation of leads, qualifying those leads, and
facilitating site visits of qualified prospects are important steps in a successful job creation
program; and
WHEREAS, the EDC has the organization, facilities, and expertise to carry out such
economic development services as both an individual contributor and a team member, in
accordance with the purpose of this Agreement; and
WHEREAS, Service Provider acknowledges that this Agreement is subject to the
requirements of Fresno Municipal Code Section 4-107 and is uniquely qualified to execute
this Agreement based on experience and expertise in performing similar services on
behalf of the CITY previously; and
WHEREAS, this Agreement will be administered for City by its Economic Development
Director (Administrator) or designee.
AGREEMENT
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NOW, THEREFORE, in consideration of the foregoing and of the covenants, conditions,
and premises hereinafter contained to be kept and performed by the respective parties,
it is mutually agreed as follows:
1. Scope of Services. Service Provider shall perform to the satisfaction of City the
services described in Exhibit A, including all work incidental to, or necessary to
perform, such services even though not specifically described in Exhibit A.
2. Term of Agreement and Time for Performance. This Agreement shall be effective
from the date first set forth above (Effective Date) and shall continue in full force
and effect through June 30, 2023, subject to any earlier termination in accordance
with this Agreement. Upon agreement by all parties, the City Manager, or their
designee, is authorized to grant up to two (2) optional one-year extensions. The
services of Service Provider as described in Exhibit A are to commence upon the
Effective Date and shall be completed in a sequence assuring expeditious
completion, but in any event, all such services shall be completed prior to
expiration of this Agreement and in accordance with any performance schedule
set forth in Exhibit A.
3. Compensation.
(a) Service Provider's sole compensation for satisfactory performance of all
services required or rendered pursuant to this Agreement shall be a total
fee not to exceed $175,000, to be paid in four (4) quarterly installments of
$43,750. Such fee includes all expenses incurred by Service Provider in
performance of the services.
(b) Detailed statements shall be rendered quarterly for services performed in
the preceding quarter and will be payable in the normal course of City
business. City shall not be obligated to reimburse any expense for which it
has not received a detailed invoice with applicable copies of representative
and identifiable receipts or records substantiating such expense.
(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 Service
Provider's compensation. Any change in the scope of services must be
made by written amendment to the Agreement signed by an authorized
representative for each party. Service Provider shall not be entitled to any
additional compensation if services are performed prior to a signed written
amendment.
4. Termination, Remedies and Force Majeure.
(a) This Agreement shall terminate without any liability of City to Service
Provider upon the earlier of: (i) Service Provider's filing for protection under
the federal bankruptcy laws, or any bankruptcy petition or petition for
receiver commenced by a third party against Service Provider; (ii) seven
calendar days' prior written notice with or without cause by City to Service
Provider; (iii) City's non -appropriation of funds sufficient to meet its
obligations hereunder during any City fiscal year of this Agreement, or
insufficient funding for the Project; or (iv) expiration of this Agreement.
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(b) Immediately upon any termination or expiration of this Agreement, Service
Provider 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 Service Provider that are owned by City. Subject to the terms
of this Agreement, Service Provider shall be paid compensation for services
satisfactorily performed prior to the effective date of termination. Service
Provider 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 Service Provider 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 Service Provider, 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 Service Provider, 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) Service Provider shall provide City with adequate written assurances of
future performance, upon Administrator's request, in the event Service
Provider fails to comply with any terms or conditions of this Agreement.
(f) Service Provider shall be liable for default unless nonperformance is caused
by an occurrence beyond the reasonable control of Service Provider 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. Service Provider shall notify Administrator 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 Administrator of the cessation of such occurrence.
5. Confidential Information and Ownership of Documents.
(a) Any reports, information, or other data prepared or assembled by Service
Provider pursuant to this Agreement shall not be made available to any
individual or organization by Service Provider without the prior written
approval of the Administrator. During the term of this Agreement, and
thereafter, Service Provider shall not, without the prior written consent of
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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, materials, compilations,
documents, instruments, models, source or object codes and other
information disclosed or submitted, orally, in writing, or by any other medium
or media. All Confidential Information shall be and remain confidential and
proprietary in City.
(b) Any and all writings and documents prepared or provided by Service
Provider pursuant to this Agreement are the property of City at the time of
preparation and shall be turned over to City upon expiration or termination
of the Agreement. Service Provider shall not permit the reproduction or use
thereof by any other person except as otherwise expressly provided herein.
(c) If Service Provider should subcontract all or any portion of the services to
be performed under this Agreement, Service Provider shall cause each
subcontractor to also comply with the requirements of this Section 5.
(d) This Section 5 shall survive expiration or termination of this Agreement
6. Level of Skill. It is further mutually understood and agreed by and between the
parties hereto that inasmuch as Service Provider represents to City that Service
Provider and its subcontractors, if any, are skilled in the profession and shall
perform in accordance with the standards of said industry necessary to perform
the services agreed to be done by it under this Agreement, City relies upon the
skill of Service Provider and its subcontractors, if any, to do and perform such
services in a skillful manner and Service Provider 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 Service Provider or any
subcontractors from said industry and professional standards.
7. Indemnification. To the furthest extent allowed by law, Service Provider shall
indemnify, hold harmless and defend City and each of its officers, officials,
employees, agents, and volunteers from any and all loss, liability, fines, penalties,
forfeitures, costs and damages (whether in contract, tort or strict liability, including
but not limited to personal injury, death at any time and property damage), and
from any and all claims, demands and actions in law or equity (including
reasonable attorney's fees and litigation expenses) that arise out of, pertain to, or
relate to the negligence, recklessness or willful misconduct of Service Provider, its
principals, officers, employees, agents, or volunteers in the performance of this
Agreement.
If Service Provider should subcontract all or any portion of the services to be
performed under this Agreement, Service Provider 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 section shall survive termination or expiration of this Agreement.
8, Insurance.
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(a) Throughout the life of this Agreement, Service Provider 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 Risk Manager or designee at any time and in its 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. However, the
insurance limits available to City, its officers, officials, employees, agents,
and volunteers as additional insureds, shall be the greater of the minimum
limits specified therein or the full limit of any insurance proceeds to the
named insured.
(b) If at any time during the life of the Agreement or any extension, Service
Provider or any of its subcontractors 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
Service Provider 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
section shall in any way relieve Service Provider 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 Service Provider shall not be deemed
to release or diminish the liability of Service Provider, 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 Service
Provider. Approval or purchase of any insurance contracts or policies shall
in no way relieve from liability nor limit the liability of Service Provider, its
principals, officers, agents, employees, or persons under the supervision of
Service Provider, vendors, suppliers, invitees, consultants, sub -consultants,
subcontractors, or anyone employed directly or indirectly by any of them.
(d) Upon request of City, Service Provider shall immediately furnish City with a
complete copy of any insurance policy required under this Agreement,
including all endorsements, with said copy certified by the underwriter to be
a true and correct copy of the original policy. This requirement shall survive
expiration or termination of this Agreement.
(e) If Service Provider should subcontract all or any portion of the services to
be performed under this Agreement, Service Provider shall require each
subcontractor/sub-consultant to provide insurance protection, as an
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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 Service Provider and City prior to the commencement of any services
by the subcontractor. Service Provider and any subcontractor/sub-
consultant shall establish additional insured status for City, its officers,
officials, employees, agents, and volunteers by using Insurance Service
Office (ISO) Form CG 20 10 11 85 or both CG 20 10 10 01 and CG
20 37 10 01 or by an executed manuscript company endorsement providing
additional insured status as broad as that contained in ISO Form CG
20 10 11 85.
9. Conflict of Interest and Non -Solicitation.
(a) Prior to City's execution of this Agreement, Service Provider shall complete
a City of Fresno conflict of interest disclosure statement in the form as set
forth in Exhibit C. During the term of this Agreement, Service Provider shall
have the obligation and duty to immediately notify City in writing of any
change to the information provided by Service Provider in such statement.
(b) Service Provider 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, Service Provider shall
provide a written opinion of its legal counsel and that of any subcontractor
that, after a due diligent inquiry, Service Provider and the respective
subcontractor(s) are in full compliance with all laws and regulations.
Service Provider 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,
Service Provider shall immediately notify City of these facts in writing.
(c) In performing the work or services to be provided hereunder, Service
Provider 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) Service Provider 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) Service Provider 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
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disclosed to and approved by the City Manager, in advance and in writing.
Notwithstanding any approval given by the City Manager under this
provision, Service Provider shall remain responsible for complying with
Section 9(a), above.
(f) If Service Provider should subcontract all or any portion of the work to be
performed or services to be provided under this Agreement, Service
Provider shall include the provisions of this Section 9 in each subcontract
and require its subcontractors to comply therewith.
(g) This Section 9 shall survive expiration or termination of this Agreement.
10. Recycling Program. In the event Service Provider maintains an office or operates
a facility(ies), or is required herein to maintain or operate same, within the
incorporated limits of the City of Fresno, Service Provider at its sole cost and
expense shall:
(a) Immediately establish and maintain a viable and ongoing recycling
program, approved by City's Solid Waste Management Division, for each
office and facility. Literature describing City recycling programs is available
from City's Solid Waste Management Division and by calling City of Fresno
Recycling Hotline at (559) 621-1111.
(b) Immediately contact City's Solid Waste Management Division at (559) 621-
1452 and schedule a free waste audit and cooperate with such Division in
their conduct of the audit for each office and facility.
(c) Cooperate with and demonstrate to the satisfaction of City's Solid Waste
Management Division the establishment of the recycling program in
paragraph (i) above and the ongoing maintenance thereof.
11. 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 Administrator or designee.
(b) Records of Service Provider'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 Service Provider 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 Service Provider should subcontract
all or any portion of the services to be performed under this Agreement,
Service Provider shall cause each subcontractor to also comply with the
requirements of this paragraph. This Section 11(b) shall survive expiration
or termination of this Agreement.
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(c) Prior to execution of this Agreement by City, Service Provider shall have
provided evidence to City that Service Provider is licensed to perform the
services called for by this Agreement (or that no license is required). If
Service Provider should subcontract all or any portion of the work or
services to be performed under this Agreement, Service Provider 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.
12. Nondiscrimination. To the extent required by controlling federal, state and local
law, Service Provider 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, sexual orientation, ethnicity, status as
a disabled veteran or veteran of the Vietnam era. Subject to the foregoing and
during the performance of this Agreement, Service Provider agrees as follows:
(a) Service Provider 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) Service Provider will not discriminate against any employee or applicant for
employment because 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. Service Provider shall ensure that applicants
are employed, and the employees are treated during employment, without
regard to their 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. Such requirement shall apply to Service Provider'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. Service
Provider agrees to post in conspicuous places, available to employees and
applicants for employment, notices setting forth the provision of this
nondiscrimination clause.
(c) Service Provider will, in all solicitations or advertisements for employees
placed by or on behalf of Service Provider 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,
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sexual orientation, ethnicity, status as a disabled veteran or veteran of the
Vietnam era.
(d) Service Provider 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 Service Provider's commitment under this section and
shall post copies of the notice in conspicuous places available to employees
and applicants for employment.
(e) If Service Provider should subcontract all or any portion of the services to
be performed under this Agreement, Service Provider shall cause each
subcontractor to also comply with the requirements of this Section 12.
13. Independent Contractor.
(a) In the furnishing of the services provided for herein, Service Provider is
acting solely as an independent contractor. Neither Service Provider, nor
any of its officers, agents, or employees shall be deemed an officer, agent,
employee, joint venturer, 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 Service Provider shall perform its work and functions. However,
City shall retain the right to administer this Agreement so as to verify that
Service Provider is performing its obligations in accordance with the terms
and conditions thereof.
(b) This Agreement does not evidence a partnership or joint venture between
Service Provider and City. Service Provider shall have no authority to bind
City absent City's express written consent. Except to the extent otherwise
provided in this Agreement, Service Provider shall bear its own costs and
expenses in pursuit thereof.
(c) Because of its status as an independent contractor, Service Provider and
its officers, agents, and employees shall have absolutely no right to
employment rights and benefits available to City employees. Service
Provider 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, Service
Provider shall be solely responsible, indemnify, defend and save City
harmless from all matters relating to employment and tax withholding for
and payment of Service Provider'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, Service Provider may be providing services to others unrelated
to City or to this Agreement.
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14. Notices. Any notice required or intended to be given to either party under the terms
of this Agreement shall be in writing and shall be deemed to be duly given if
delivered personally, transmitted by facsimile followed by telephone confirmation
of receipt, or sent by United States registered or certified mail, with postage
prepaid, return receipt requested, addressed to the party to which notice is to be
given at the party's address set forth on the signature page of this Agreement or
at such other address as the parties may from time to time designate by written
notice. Notices served by United States mail in the manner above described shall
be deemed sufficiently served or given at the time of the mailing thereof.
15. Binding. Subject to Section 16, 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.
16. Assignment.
(a) This Agreement is personal to Service Provider and there shall be no
assignment by Service Provider of its rights or obligations under this
Agreement without the prior written approval of the City Manager or
designee. Any attempted assignment by Service Provider, its successors
or assigns, shall be null and void unless approved in writing by the City
Manager or designee.
(b) Service Provider hereby agrees not to assign the payment of any monies
due Service Provider 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 Service Provider directly to Service Provider.
17. Compliance With Law. In providing the services required under this Agreement,
Service Provider 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.
18. 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.
19. 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
Fresno County, California.
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20. 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.
21, 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.
22. Interpretation. The parties acknowledge this Agreement in its final form is the
result of the combined efforts of the parties and, 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.
23. 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.
24. Exhibits. Each exhibit and attachment referenced in this Agreement is, by the
reference, incorporated into and made a part of this Agreement.
25. 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.
26. 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.
27. 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.
28. Extent of A reement. Each party acknowledges that they have read and fully
understand the contents of this Agreement. This Agreement represents the entire
and integrated agreement between the parties with respect to the subject matter
hereof and supersedes 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 Service Provider.
29. The City Manager, or designee, is hereby authorized and directed to execute and
implement this Agreement. The previous sentence is not intended to delegate any
authority to the City Manager to administer the Agreement, any delegation of
authority must be expressly included in the Agreement.
[SIGNATURES FOLLOW ON THE NEXT PAGE.]
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IN WITNESS WHEREOF, the parties have executed this Agreement at Fresno,
California, the day and year first above written.
CITY OF FRESNO,
a California municipal corporation
By: I
Georg anne A. White
City � nager, City of Fresno
APPROVED AS TO FORM:
ANDREW JANZ
City Attorn
By:
Angela M. Karst'Date
Deputy City Attorney
ATTEST:
TODD STERMER,
City Clerk
in
Deputy
Addresses:
ECONOMIC DEVELOPMENT
CORPORATION SERVING FRESNO
COUNTY,
a California nonprofit corporation
By- �
Name: N
Title
(If corporation or LLC., Board Ch '
Pres. or Vice P s.)
FF
Name:
CMC Title -
(If corporation or LLC_, GKO, Treasurer,
Secretary or Assistant Secretary)
Date
CITY:
City of Fresno
Attention: Lance Lippincott, Economic
Development Director
2600 Fresno Street
Fresno, CA 93721
Phone: (559) 621-8350
E-mail: lance. lippincott@fresno.gov
Service Provider:
Economic Development Corporation
Serving Fresno County
Attention: Lee Ann Eager,
President/CEO
1060 Fulton Street
Fresno, CA 93721
Phone: (559) 476-2500
E-mail: leager@fresnoedc.com
Attachments:
1. Exhibit A - Scope of Services
2. Exhibit B - Insurance Requirements
3. Exhibit C - Conflict of Interest Disclosure Form
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EXHIBIT A
SCOPE OF SERVICES
Service Agreement between City of Fresno
and Economic Development Corporation Serving Fresno County
Economic Development Services
1. SERVICES
EDC will perform the following to further the CITY's Economic Development goals in an
effort to help attract, retain and keep value added companies that provide higher income
jobs that are a good fit for the community.
A. GENERAL SERVICES:
1. Create, with input from the CITY, an ADA compliant economic profile, in
electronic and print format, and update at least once annually; and
2. Maintain current information regarding available commercial and industrial
properties; and
3. Serve as a distribution point for CITY informational materials.
B. BUSINESS ATTRACTION AND PROMOTION: In an effort to assist the
CITY in marketing to businesses and industries not currently located in
Fresno, with the goal of facilitating the attraction of value-added companies
that bring high paying jobs, the EDC shall:
1. Respond to business attraction leads on behalf of the CITY, including all
appropriate State RFP's; and
2. Provide general and site -specific information to businesses not currently
located in the CITY for purposes of recruiting new businesses and
industries; and
3. Participate in trade shows and other events with, and on behalf of, the
CITY including, but not limited to, IEDC, MD&M West, World Ag Expo and
others as mutually agreed. Should any of these trade shows or events be
attended in cooperation with the entity commonly referred to as the
California Central Valley Economic Development Corporation (CCVEDC)
they shall be counted in fulfilling the requirements of this section; and
4. Assist in marketing identified areas to new businesses;
5. Facilitate and organize site visits for the design and development of the
downtown high speed rail station, and
6. Upon obtaining written consent from any and all entities requesting a
response, report to the CITY Economic Development Director or designee
through email or other mutually approved medium, any and all inquiries of
businesses, industrial site selectors, and/or commercial site selectors that
have an interest locating in the City of Fresno and/or to which the EDC
responds to with potential sites located within the City jurisdiction or
sphere of influence no more than five (5) business days to prevent
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potential duplication of effort. If the EDC knows the name of the business,
then the CITY will know that information as well. If more than five (5) days
have passed when the EDC learns the name of the business, that
information shall be relayed to the CITY; and
In addition to the reporting highlighted in the preceding section, upon
obtaining written consent referenced in 13.5, the EDC shall invite the CITY
Economic Development Department (through notification to the Director or
designee) to all site selection or placement processes that could
potentially result in placement of a new business in the City's jurisdiction
or sphere of influence.
C. BUSINESS EXPANSION AND RETENTION: In an effort to assist the CITY
in retaining and assisting local businesses with their expansion needs, the
EDC shall:
1. Inform the City Economic Development Director (or designee) through
database tracking, email or other mutually agreed medium of
engagements between EDC and City of Fresno businesses regarding
notable expansion and/or retention services to prevent duplication of effort
from either entity within ten business days or at the bi-weekly meetings,
whichever comes first. Notable expansion and/or retention services shall
consist of projects or leads that involve the CITY, such as site selection
requirements, permitting assistance, CITY administered incentives (e.g.,
fee reductions, development incentive agreements and Revolving Loan
Fund financing), or retention services to prevent business closures; and
2. Provide general and, when appropriate, site specific information to
businesses currently located in the CITY for purposes of retaining and/or
assisting with business expansion needs; and
3. Participate in trade shows and other events with, and on behalf of, the
CITY including, but not limited to, Local Food Expo, San Joaquin Valley
Manufacturing Alliance Trade Show and others as mutually agreed; and
Assist in marketing identified areas to current businesses as appropriate.
D. PERFORMANCE & REPORTING: In an effort to quantify results of the
economic development effort and to justify the expenditure of public funds,
the EDC will:
1. Participate in monthly meetings with the CITY's Economic Development
Director (or designee) and staff. EDC to designate the most responsive
staff to attend these meetings; and
2. Maintain and update a monthly database tracking system of current and
closed projects or leads that involve the CITY and/or CITY locations; and
3. Collaborate and report on all activities carried out in support of the City of
Fresno General Plan, and
4. Report on all outreach activity that includes the CITY/CITY information
including any trade shows or other economic development
conferences/events attended quarterly. Information shall include (when
available):
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a. Date
b. Event Name
c. Nature/Purpose of activity
d. Number of businesses spoken to
e. Follow-up
f. Outcomes; and
5. Report on any/all business attraction and promotion inquiries and activity
received or responded to by the EDC that involve the CITY or sites within
the CITY quarterly. Information shall include (when available):
a. Date of initial contact
b. Name of company
c. Industry
d. Contact Name/Info
e. Source of lead
f. Site needs (size, location, rail, etc.)
g. Number of jobs to be created
h. Information on the status and outcome of the inquiry and reason for
any losses; and
6. Report on all business expansion and retention inquiries and activity
received or responded to by the EDC that involves the CITY or sites within
the CITY quarterly. Information shall include (when available):
a. Date of initial contact
b. Name of company
c. Industry
d. Contact Name/Info
e. Source of lead
f. Site needs (size, location, rail, etc.)
g. Number of current/proposed jobs
h. Information on the status and outcome of the inquiry and reason for
any losses
7. All reports, marketing materials, and other items designed under this
contract that are specific to the City of Fresno shall contain co -branding of
both a pre -approved City of Fresno logo, and whichever logo from the
EDC that they deem most appropriate. The intent of this provision is to
recognize the efforts of the EDC on behalf of the City, and to highlight the
partnership between the entities.
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QUARTERLY REPORT
OUTREACH ACTIVITY
DATE
FVENT NAME NATl1FtElPURP.OSE
NOWER OF
BUSINESSES
CQNTACTE�
FOLL.CtW�UP�
OUTCOME{5}
DATE OF COMPANY_
INITIAL NAME
BUSINESS ATTRACTION AND PROMOTION
SITE SELECTION INQUIRIES
f CONTACT SOURCE I SITE NUMBER STi4l [J5IOUTCDIY
NAME/INFO j NEEDS OF JOBS (IF LOST - WHY?-)
i CREATED
BUSINESS RETENTION AND EXPANSION INQUIRIES
DATE OF COMPANY INDUSTRY CONTACT
INITIAL NAME NAMEIINFO
CONACT
SITE NUMBER I STATUS.IOUTCOM
NEEDS OF JOBS I (.IF LOST -WHY?)
RETAINEDI
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EXHIBIT B
INSURANCE REQUIREMENTS
Service Agreement between City of Fresno (City)
and Economic Development Corporation Serving Fresno County (Service
Provider)
Economic Development Services
MINIMUM SCOPE OF INSURANCE
(a) Throughout the life of this Agreement, Service Provider shall pay for and maintain
in full force and effect all insurance as required herein 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 Risk
Manager or designee at any time and in its sole discretion. The required policies
of insurance as stated herein shall maintain limits of liability of not less than those
amounts stated therein. However, the insurance limits available to City, its officers,
officials, employees, agents, and volunteers as additional insureds, shall be the
greater of the minimum limits specified therein or the full limit of any insurance
proceeds to the named insured.
(b) If at any time during the life of the Agreement or any extension, Service Provider
or any of its subcontractor 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 Service Provider 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 section shall in any way relieve Service Provider 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 Service Provider shall not be deemed to
release or diminish the liability of Service Provider, 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 Service Provider. Approval or purchase of
any insurance contracts or policies shall in no way relieve from liability nor limit the
liability of Service Provider, vendors, suppliers, invitees, consultants,
subcontractor or anyone employed directly or indirectly by any of them.
Coverage shall be at least as broad as:
1. The most current version of Insurance Services Office (ISO) Commercial
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General Liability Coverage Form CG 00 01, providing liability coverage
arising out of your business operations. The Commercial General Liability
policy shall be written on an occurrence form and shall provide coverage for
"bodily injury," "property damage" and "personal and advertising injury" with
coverage for premises and operations (including the use of owned and non -
owned equipment), products and completed operations, and contractual
liability (including, without limitation, indemnity obligations under the
Agreement) with limits of liability not less than those set forth under
"Minimum Limits of Insurance."
2. The most current version of ISO Commercial Auto Coverage Form CA 00
01, providing liability coverage arising out of the ownership, maintenance or
use of automobiles in the course of your business operations. The
Automobile Policy shall be written on an occurrence form and shall provide
coverage for all owned, hired, and non -owned automobiles or other licensed
vehicles (Code 1- Any Auto).
3. Workers' Compensation insurance as required by the State of California
and Employer's Liability Insurance.
MINIMUM LIMITS OF INSURANCE
Service Provider shall procure and maintain for the duration of the contract, and for 5
years thereafter, insurance with limits of liability not less than those set forth below.
However, insurance limits available to City, its officers, officials, employees, agents, and
volunteers as additional insureds, shall be the greater of the minimum limits specified
herein or the full limit of any insurance proceeds available to the named insured:
COMMERCIAL GENERAL LIABILITY
(i) $1,000,000 per occurrence for bodily injury and property damage;
(ii) $1,000,000 per occurrence for personal and advertising injury;
(iii) $2,000,000 aggregate for products and completed operations; and,
(iv) $2,000,000 general aggregate applying separately to the work
performed under the Agreement.
2. COMMERCIAL AUTOMOBILE LIABILITY
$1,000,000 per accident for bodily injury and property damage.
3. Workers' Compensation Insurance as required by the State of California with
statutory limits and EMPLOYER'S LIABILITY with limits of liability not less than:
(i) $1,000,000 each accident for bodily injury;
(ii) $1,000,000 disease each employee; and,
(iii) $1,000,000 disease policy limit.
UMBRELLA OR EXCESS INSURANCE
In the event Service Provider purchases an Umbrella or Excess insurance policy(ies) to
meet the "Minimum Limits of Insurance," this insurance policy(ies) shall "follow form" and
afford no less coverage than the primary insurance policy(ies). In addition, such Umbrella
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or Excess insurance policy(ies) shall also apply on a primary and non-contributory basis
for the benefit of the City, its officers, officials, employees, agents, and volunteers.
DEDUCTIBLES AND SELF -INSURED RETENTIONS
Service Provider shall be responsible for payment of any deductibles contained in any
insurance policy(ies) required herein and Service Provider shall also be responsible for
payment of any self -insured retentions. Any self -insured retentions must be declared on
the Certificate of Insurance, and approved by, the City's Risk Manager or designee. At
the option of the City's Risk Manager or designee, either:
(i) The insurer shall reduce or eliminate such self -insured retentions as
respects City, its officers, officials, employees, agents, and volunteers; or
(ii) Service Provider shall provide a financial guarantee, satisfactory to City's
Risk Manager or designee, guaranteeing payment of losses and related
investigations, claim administration and defense expenses. At no time shall
City be responsible for the payment of any deductibles or self -insured
retentions.
OTHER INSURANCE PROVISIONS/ENDORSEMENTS
(i) All policies of insurance required herein shall be endorsed to provide that
the coverage shall not be cancelled, non -renewed, reduced in coverage or
in limits except after thirty (30) calendar days written notice has been given
to City, except ten (10) days for nonpayment of premium. Service Provider
is also responsible for providing written notice to the City under the same
terms and conditions. Upon issuance by the insurer, broker, or agent of a
notice of cancellation, non -renewal, or reduction in coverage or in limits,
Service Provider shall furnish City with a new certificate and applicable
endorsements for such policy(ies). In the event any policy is due to expire
during the work to be performed for City, Service Provider shall provide a
new certificate, and applicable endorsements, evidencing renewal of such
policy not less than fifteen (15) calendar days prior to the expiration date of
the expiring policy.
(ii) The Commercial General and Automobile Liability insurance policies shall
be written on an occurrence form.
(iii) The Commercial General and Automobile Liability insurance policies shall
be endorsed to name City, its officers, officials, agents, employees, and
volunteers as an additional insured. Service Provider shall establish
additional insured status for the City and for all ongoing and completed
operations under the Commercial General policy by use of ISO Forms or an
executed manuscript insurance company endorsement providing additional
insured status. The Commercial General endorsements must be as broad
as that contained in ISO Forms: GC 20 10 11 85 or both CG 20 10 & CG 20
37.
(iv) The Commercial General and Automobile Liability insurance shall contain,
or be endorsed to contain, that the Service ProviderS' insurance shall be
primary to and require no contribution from the City. The Commercial
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General policy is required to include primary and non-contributory coverage
in favor of the City for both the ongoing and completed operations coverage.
These coverages shall contain no special limitations on the scope of
protection afforded to City, its officers, officials, employees, agents, and
volunteers. If Service Provider maintains higher limits of liability than the
minimums shown above, City requires and shall be entitled to coverage for
the higher limits of liability maintained by Service Provider.
(v) Should any of these policies provide that the defense costs are paid within
the Limits of Liability, thereby reducing the available limits by defense costs,
then the requirement for the Limits of Liability of these polices will be twice
the above stated limits.
(vi) For any claims related to this Agreement, Service Provider's insurance
coverage shall be primary insurance with respect to the City, its officers,
officials, agents, and volunteers. Any insurance or self-insurance
maintained by the City, its officers, officials, agents, employees, and
volunteers shall be excess of the Service Provider's insurance and shall not
contribute with it.
(vii) The Commercial General Liability, Automobile Liability and Workers'
Compensation insurance policies shall contain, or be endorsed to contain,
a waiver of subrogation as to City, its officers, officials, agents, employees,
and volunteers.
PROVIDING OF DOCUMENTS - Service Provider shall furnish City with all certificate(s)
and applicable endorsements effecting coverage required herein All certificates and
applicable endorsements are to be received and approved by the City's Risk
Manager or designee prior to City's execution of the Agreement and before work
commences. All non -ISO endorsements amending policy coverage shall be executed
by a licensed and authorized agent or broker. Upon request of City, Service Provider
shall immediately furnish City with a complete copy of any insurance policy required under
this Agreement, including all endorsements, with said copy certified by the underwriter to
be a true and correct copy of the original policy. This requirement shall survive expiration
or termination of this Agreement. All subcontractors working under the direction of
Service Provider shall also be required to provide all documents noted herein.
SUBCONTRACTORS - If Service Provider subcontracts any or all of the services to be
performed under this Agreement, Service Provider shall require, at the discretion of the
City Risk Manager or designee, subcontractor(s) to enter into a separate Side Agreement
with the City to provide required indemnification and insurance protection. Any required
Side Agreement(s) and associated insurance documents for the subcontractor must be
reviewed and preapproved by City Risk Manager or designee. If no Side Agreement is
required, Service Provider will be solely responsible for ensuring that its subcontractor
maintain insurance coverage at levels no less than those required by applicable law and
is customary in the relevant industry.
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EXHIBIT C
DISCLOSURE OF CONFLICT OF INTEREST
Economic Development Services
YES* I NO
1 Are you currently in litigation with the City of Fresno or any of its ❑
agents?
2 Do you represent any firm, organization, or person who is in litigation ❑
with the City of Fresno?
3 Do you currently represent or perform work for any clients who do ❑
business with the City of Fresno?
4 Are you or any of your principals, managers, or professionals,
owners or investors in a business which does business with the City ❑ AS
of Fresno, or in a business which is in litigation with the City of
Fresno?
5 Are you or any of your principals, managers, or professionals,
related by blood or marriage to any City of Fresno employee who ❑
has any significant role in the subject matter of this service?
6 Do you or any of your subcontractors have, or expect to have, any
interest, direct or indirect, in any other contract in connection with ❑j
this Project?
* If the answer to any question is yes, please explain in full below -
Explanation: The nature of our organization
is working with local businesses that may
also have business dealings with the City -
of Fresno. The EDC will inform the City of
Fresno with any knowledge of business
Conflict as it becomes apparent.
Y Additional page(s) attached.
Date
Lee Ann Eager
Name
Fresno El
Company
1060 Fulton St.. 4th Floor
Address
Fresno. CA 93721
City, State, Zip
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