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HomeMy WebLinkAboutEconomic Development CouncilMC Contract #20-106 AGREEMENT BETWEEN Mason County, Washington AND Economic Development Council of Mason County This Agreement is made between Mason County (herein called the COUNTY) and Economic Development Council of Mason County (EDC) (herein called CONTRACTOR) for the CARES Act Grant — COVID-19 Response 2nd Round of Funding project (herein called the Project). As the Washington State Department of Commerce (Commerce) is authorized by the US Department of Treasury to provide funds to units of COUNTY selected to undertake and carry out projects under the Washington State Coronavirus Relief Fund (CRF) Program in compliance with all applicable local, state, and federal laws, regulations and policies; and As the COUNTY has applied for and received a Coronavirus Relief Fund for COUNTYs award, contract number 20-6541C-023 (CFDA 21.019), to fund the Project; and As it benefits the COUNTY to engage the CONTRACTOR to accomplish the Scope of Work and the objectives of the local CDBG project; The parties agree that: 1. SCOPE OF SERVICES A. COUNTY Responsibilities The COUNTY is responsible for administration of the CRF contract, and ensuring CRF funds are used in accordance with all program requirements [(24 CFR 570.501(b)] and its Department of Commerce contract referenced above. The COUNTY will provide such assistance and guidance to the CONTRACTOR as may be required to accomplish the objectives and conditions set forth in this Agreement. The COUNTY is responsible for completing the following tasks to accomplish the objectives of the Project: Principal Tasks • Execute contract with COMMERCE • Execute CONTRACTOR AGREEMENT • Establish administrative and other record keeping systems • Process and submit payment requests and CRF Reports • Formulate and a CONTRACTOR monitoring plan and conduct on -site review • Ensure grant activities are completed Page 1 of 14 • Conduct a final public hearing • Complete the grant close-out process with COMMERCE B. CONTRACTOR Responsibilities The CONTRACTOR will complete in a satisfactory and proper manner as determined by the COUNTY the following tasks to accomplish the objectives of principally benefiting low- and moderate -income persons or businesses. The CONTRACTOR will periodically meet with the COUNTY to review the status of these tasks. Principal Tasks • Formulate and submit required reports and payment requests to COUNTY in an accurate and timely manner. • Provide COVID-19 Response assistance in the form of emergency grant awards of up to $15,000 to qualifying businesses in Mason County with less than 20 employees, or up to $30,000 to qualifying businesses in Mason County with 21 or more employees to enable them to retain the level of employees as close to January 2020 as possible and to cover the cost of business interruption caused by required closures related to the COVID-19 pandemic mitigation. • Provide the opportunity for each non-profit organization engaged in COVID-19 support activities to submit an application. • Utilize a 3-Tiered ranking system summarized in Attachment 2. TIME OF PERFORMANCE The effective date of this Agreement will be the date the parties sign and complete execution of this agreement and will be in effect through November 30, 2020 with all reimbursement requests completed by that date. 3. AGREEMENT REPRESENTATIVES Each party to this Agreement shall have a representative. Each party may change its representative upon providing written notice to the other party. The parties' representatives are as follows: A. CONTRACTOR: Economic Development Council of Mason County Name of Representative: Jennifer Baria Mailing Address: 310 E Cota Street City, State and Zip Code: Shelton, WA 98584 Telephone Number: 360 426 2276 Fax: na E-mail Address: jennifer@choosemason.com U BI#: 601137830 Page 2 of 14 B. COUNTY : Mason County Name of Representative: Kelly Bergh Title: Financial Analyst Mailing Address: 411 N 5th Street City, State and Zip Code: Shelton, WA 98584 Telephone Number: 360 427 9670 ext 644 Fax Number: 360 427 8437 E-mail Address: kbergh@co.rnason.wa.us 4. BUDGET The COUNTY will pass through to the CONTRACTOR no more than $300,000 in CRF funds for eligible incurred costs and expenses for the Project according to the following budget. Project Budget Element Budgeted Amount COVID-19 direct employee payroll assistance and business interruption assistance of emergency grants $300,000 COVED -19 direct employee payroll assistance for the Mason County EDC to administer this contract as Modified Total Direct Costs (MTDC) Indirect Cost Rate: Federally Approved _% Indirect Rate, or 10% de minimis rate, or fill out "N/A" declining to charge indirect Indirect Cost Rate if the CONTRACTOR chooses to charge Indirect under this grant, the CONTRACTOR shall provide their indirect cost rate that has been negotiated between their entity and the Federal Government. If no such rate exists, a de minimis indirect cost rate of 10% of modified total direct costs (MTDC) will be used. "Modified Total Direct Costs (MTDC)" shall mean all direct salaries and wages, applicable fringe benefits, materials and supplies, services, travel, and up to the first $0 of each subaward (regardless of the period of performance of the subawards under the award). MTDC excludes equipment, capital expenditures, and rental costs. Any amendments to this Agreement's Budget must first be determined by the COUNTY as consistent with its CRF contract with Commerce and then approved in writing by the COUNTY and the CONTRACTOR. 5. PAYMENT Reimbursement under this Agreement will be based on billings, supported by appropriate documentation of costs actually incurred. It is expressly understood that Page 3 of 14 claims for reimbursement will not be submitted in excess of actual, immediate cash requirements necessary to carry out the purposes of the agreement. Funds available under this Agreement will be utilized to supplement rather than supplant funds otherwise available. It is understood that this Agreement is funded in whole or in part with CRF funds through the Washington State Department of Commerce CRF Program as administered by Commerce and is subject to those regulations and restrictions normally associated with federally -funded programs and any other requirements that the State may prescribe. 6. PERFORMANCE MONITORING The COUNTY will monitor the performance of the CONTRACTOR by tracking project progress, reviewing payment requests for applicable costs, managing the timely pass - through of CRF funds, overseeing compliance with Department of Commerce requirements, and ensuring recordkeeping and audit requirements are met. Substandard performance as determined by the COUNTY will constitute noncompliance with this Agreement. If action to correct such substandard performance is not taken by the CONTRACTOR within a reasonable period of time after being notified by the COUNTY, contract suspension or termination procedures will be initiated. 7. SPECIAL CONDITIONS A. Withholding Payment: In the event the CONTRACTOR has failed to perform any obligation under this AGREEMENT within the times set forth in the AGREEMENT, the COUNTY may, upon written notice, withhold from amounts otherwise due and payable to CONTRACTOR, without penalty, until such failure to perform is cured or otherwise adjudicated. Withholding under this clause shall not be deemed a breach entitling CONTRACTOR to termination or damages, provided that the COUNTY promptly gives notice in writing to the CONTRACTOR of the nature of the default or failure to perform, and in no case more than 10 days after it determines to withhold amounts otherwise due. A determination of the Administrative Office set forth in a notice to the CONTRACTOR of the action required and/or the amount required to cure any alleged failure to perform shall be deemed conclusive under this clause, without prejudice to any other remedy under the AGREEMENT, to take all or any of the following actions: (1) cure any failure or default, (2) to pay any amount so required to be paid and to charge the same to the account of the CONTRACTOR, (3) to set off any amount so paid or incurred from amounts due or to become due the CONTRACTOR. In the event the CONTRACTOR obtains relief upon a claim under the Disputes clause, no penalty or damages shall accrue to CONTRACTOR by reason of good faith withholding by the COUNTY under this clause. B. Labor Standards: CONTRACTOR agrees to comply with all applicable state and federal requirements, including but not limited to those pertaining to payment of wages and working Page 4 of 14 conditions, in accordance with RCW 39.12.040, the Prevailing Wage Act; the Americans with Disabilities Act of 1990; the Davis -Bacon Act; and the Contract Work Hours and Safety Standards Act providing for weekly payment of prevailing wages, minimum overtime pay, and providing that no laborer or mechanic shall be required to work in surroundings or under conditions which are unsanitary, hazardous, or dangerous to health and safety as determined by regulations promulgated by the Federal Secretary of Labor and/or the State of Washington. C. Waiver of Noncompetition: CONTRACTOR irrevocably waives any existing rights which it may have, by contract or otherwise, to require another person or corporation to refrain from submitting a proposal to or performing work or providing supplies to the COUNTY, and CONTRACTOR further promises that it will not in the future, directly or indirectly, induce or solicit any person or corporation to refrain from submitting a bid or proposal to or from performing work or providing supplies to the COUNTY. D. Ownership of Items Produced: All writings, programs, data, public records or other materials prepared by CONTRACTOR and/or its consultants or sub -CONTRACTORS, in connection with performance of this AGREEMENT, shall be the sole and absolute property of COUNTY. E. E-verify: The E-Verify CONTRACTOR program for Mason County applies to contracts of $100,000 or more and subcontracts for $25,000 or more if the primary contract is for $100,000 or more. CONTRACTOR represents and warrants that it will, for at least the duration of the AGREEMENT, register and participate in the status verification system for all newly hired employees. The term "employee" as used herein means any person that is hired to perform work for Mason County. As used herein, "status verification system: means the Illegal Immigration Reform and Immigration Responsibility Act of 1996 that is operated by the United States Department of Homeland Security, also known as the E-Verify Program, or any other successor electronic verification system replacing the E-Verify Program. CONTRACTOR agrees to maintain records of such compliance and, upon request of the COUNTY, to provide a copy of each such verification to the COUNTY. CONTRACTOR further represents and warrants that any person assigned to perform services hereunder meets the employment eligibility requirements of all immigration laws of the State of Washington. CONTRACTOR understands and agrees that any breach of these warranties may subject CONTRACTOR to the following: (a) termination of the AGREEMENT and ineligibility for any Mason County contract for up to three (3) years, with notice of such cancellation/termination being made public. In the event of such termination/cancellation, CONTRACTOR would also be liable for any additional costs incurred by the COUNTY due to contract cancellation or loss of license or permit. CONTRACTOR will review and enroll in the E- Verify program through this website: www.uscis.gov Page 5of14 F. Disputes: Differences between CONTRACTOR and COUNTY, arising under and by virtue of the AGREEMENT Documents, shall be brought to the attention of COUNTY at the earliest possible time in order that such matters may be settled or other appropriate action promptly taken. Except for such objections as are made of record in the manner hereinafter specified and within the time limits stated, the records, orders, rulings, instructions, and decisions of the Administrative Officer shall be final and conclusive. G. Arbitration: Other than claims for injunctive relief brought by a party hereto (which may be brought either in court or pursuant to the arbitration provision), and consistent with the provisions hereinabove, any claim, dispute or controversy between the PARTIES under, arising out of, or related to the AGREEMENT or otherwise, including issues of specific performance, shall be determined by arbitration in Shelton, Washington, under the applicable American Arbitration Association (AAA) rules in effect on the date hereof, as modified by the AGREEMENT. There shall be one arbitrator selected by the PARTIES within ten (10) days of the arbitration demand, or if not, by the AAA or any other group having similar credentials. Any issue about whether a claim is covered by this AGREEMENT shall be determined by the arbitrator. The arbitrator shalt apply substantive law and may award injunctive relief, equitable relief (including specific performance), or any other remedy available from a judge, including expenses, costs and attorney fees to the prevailing party and pre -award interest, but shall not have the power to award punitive damages. The decision of the arbitrator shall be the sole and exclusive remedy between them regarding any dispute presented or pled before the arbitrator. At the request of either party made no later than forty-five (45) days after the arbitration demand, the PARTIES agree to submit the dispute to nonbinding mediation, which shall not delay the arbitration hearing date; provided, that either party may decline to mediate and process with arbitration. H. Venue and Choice of Law: In the event that any litigation should arise concerning the construction or interpretation of any of the terms of the AGREEMENT, the venue of such action of litigation shall be in the courts of the State of Washington in and for the County of Mason. Unless otherwise specified herein, this AGREEMENT shall be governed by the laws of Mason County and the State of Washington. 8. GENERAL CONDITIONS A. Genera! Compliance The CONTRACTOR agrees to comply with: • The requirements of Title V and VI of the CARES Act. Regulations; and • All other applicable Federal, State and Local laws, regulations, and policies, governing the funds provided under this Agreement. Page 6 of 14 B. Independent CONTRACTOR Nothing contained in this Agreement is intended to, or will be construed in any manner, as creating or establishing the relationship of employer/employee between the parties. The CONTRACTOR will at all times remain an "independent contractor" with respect to the services to be performed under this Agreement. The COUNTY will be exempt from payment of all Unemployment Compensation, FICA, retirement, life and/or medical insurance and Workers' Compensation Insurance, as the CONTRACTOR is an independent contractor. C. Hold Harmless CONTRACTOR shall indemnify, defend and hold harmless the COUNTY, and its officers, officials, boards, commissions, agents and employees (while acting in an official capacity) from any action, claim, damage, loss, liability, cost or expense, including court and appeal costs and reasonable attorneys' fees and expenses, arising from any action, neglect, omission or inaction of the CONTRACTOR its agents or employees. CONTRACTOR shall consult and cooperate with the COUNTY while conducting its defense of the COUNTY. If any such claim or demand is subject to RCW 4.24.115 and caused by or results from the concurrent negligence of (a) the COUNTY, its elected or appointed officials, or its agents or employees and (b) CONTRACTOR, or its agents or employees, then in such event the defense and indemnity provisions provided for in the preceding paragraph shall be valid and enforceable only to the extent of CONTRACTOR's negligence. The COUNTY shall indemnify, defend and hold harmless CONTRACTOR, and its officers, agents and employees (while acting in an official capacity) from any action, claim, damage, loss, liability, cost or expense, including court and appeal costs and reasonable attorneys' fees and expenses, arising from any action, neglect, omission or inaction of the COUNTY its agents or employees. The COUNTY shall consult and cooperate with CONTRACTOR while conducting its defense of CONTRACTOR. If any such claim or demand is subject to RCW 4.24.115 and caused by or results from the concurrent negligence of (a) CONTRACTOR, its elected or appointed officials, or its agents or employees and (b) the COUNTY, or its agents or employees, then in such event the defense and indemnity provisions provided for in the preceding paragraph 9.1 shall be valid and enforceable only to the extent of the COUNTY's negligence. Procedures and Defense. The indemnified party shall give the other party timely written notice of any claim or of the commencement of any action, suit or other proceeding covered by the indemnity in this Section. If a claim or action arises, indemnified party shall then tender the defense of the claim to other within six (6) business days of receipt of such notice, which defense shall be at the indemnifying party's expense. The indemnified party may participate in the defense of a claim and, in any event, the Indemnifying party may not agree to any settlement of claims financially affecting the indemnified party without the indemnified party's prior written approval, which approval shall not be unreasonably withheld. Expenses. If separate representation to fully protect the interests of both parties is necessary, such as a conflict of interest between the indemnified party and the counsel selected by indemnifying party to represent the indemnified party, the indemnifying Page 7 of 14 party shall pay the expenses incurred by the indemnified party in defending itself with regard to any action, suit or proceeding indemnified. The indemnified party's expenses shall include all out of -pocket expenses that are necessary for the indemnified party defense, such as consultants' fees, and shall also include the reasonable value of any services rendered by the General Counsel/County Attorney or his/her assistants or any employees of the indemnified party or its agents but shall not include outside attorneys' fees for services that are unnecessarily duplicative of services provided the indemnified party by the indemnifying party. D. Workers' Compensation The CONTRACTOR will provide Workers' Compensation Insurance Coverage for all of its employees involved in the performance of this Agreement. E. Insurance and Bonding The CONTRACTOR will carry sufficient insurance coverage to protect contract assets from loss due to theft, fraud and/or undue physical damage, and as a minimum will purchase a blanket fidelity bond covering all employees in an amount equal to cash advances from the COUNTY. The CONTRACTOR shall furnish the COUNTY with properly executed certificate of insurance or a signed policy endorsement which shall clearly evidence all insurance required in this section prior to commencement of services. The certificates will, at a minimum, list limits of liability and coverage. The certificate will provide that the underlying insurance contract will not be cancelled or allowed to expire except on thirty (30) days prior written notice to the COUNTY. F. Funding Source Recognition The CONTRACTOR will insure recognition of the roles of Commerce, the WA State CRF program, and the COUNTY in providing services through this Agreement. All activities, facilities and items utilized pursuant to this Agreement will be prominently labeled as to funding source. In addition, the CONTRACTOR will include a reference to the support provided herein in all publications made possible with funds made available under this Agreement. G. Amendments The COUNTY or CONTRACTOR may amend this Agreement at any time provided that such amendments make specific reference to this Agreement, and are executed in writing, signed by a duly authorized representative of each organization, and approved by the COUNTY's governing body. Such amendments will not invalidate this Agreement, nor relieve or release the COUNTY or CONTRACTOR from its obligations under this Agreement. H. Suspension or Termination The COUNTY may suspend or terminate this Agreement if the CONTRACTOR materially fails to comply with any terms of this Agreement, which include (but are not limited to) the following: Page 8 of 14 1. Failure to comply with any of the rules, regulations or provisions referred to herein, or such statues, regulations, executive orders, and guidelines, policies or directives as may become applicable at any time; 2. Failure, for any reason, of the CONTRACTOR to fulfill in a timely and proper manner its obligations under this Agreement. 3. Ineffective of improper use of funds provided under this Agreement; or 4. Submission by the CONTRACTOR to the COUNTY of reports that are incorrect or incomplete in any material respect. In accordance with 2 CFR 200.339, this Agreement may also be terminated by either the COUNTY or the CONTRACTOR, in whole or in part, by setting forth the reasons for such termination, the effective date, and, in the case of partial termination, the portion to be terminated. However, if in the case of a partial termination, the COUNTY determines that the remaining portion of the award will not accomplish the purpose for which the award was made, the COUNTY may terminate the award in its entirety. 9. ADMINISTRATIVE REQUIREMENTS A. Financial Management 1. Accounting Standards The CONTRACTOR agrees to comply with 2 CFR 200 and agrees to adhere to the accounting principles and procedures required therein, utilize adequate internal controls, and maintain necessary source documentation for all costs incurred. 2. Cost Principles The CONTRACTOR will administer its program in conformance with 2 CFR 200. These principles will be applied for all costs incurred whether charged on a direct or indirect basis. 3. Duplication of Costs The CONTRACTOR certifies that work to be performed under this Agreement does not duplicate any work to be charged against any other contract, subcontract or other source. B. Documentation and Record Keeping 1. Records to Be Maintained The CONTRACTOR will maintain all records required by the Federal regulations specified in 24 CFR 570.506 that are pertinent to the activities to be funded under this Agreement and those records described in the CDBG Management Handbook. Such records will include but not be limited to: a. Records providing a full description of each activity undertaken; b. Records required to determine the eligibility of activities; Page 9 of 14 c. Records required to document the acquisition, improvement, use or disposition of real property acquired or improved with CRF assistance; d. Records documenting compliance with the civil rights components of the CRF program; e. Financial records as required by 24 CFR 570.502, and 2 CFR 200.333; f. Labor standards records required to document compliance with the Davis Bacon Act, the provisions of the Contract Work Hours and Safety Standards Act, and all other applicable Federal, State and Local Paws and regulations applicable to CDBG- funded construction projects; and g. Other records necessary to document compliance with Subpart K of 24 CFR 570. 2. Access to Records and Retention The grantee, the Washington State Department of Commerce, and other authorized representatives of the state and federal governments shall have access to any books, documents, papers and records of the CONTRACTOR that are directly pertinent to this Agreement for the purposes of making audit, examination, excerpts and transcriptions. All such records and all other records pertinent to this Agreement and work undertaken under this Agreement will be retained by the CONTRACTOR for a period of six years after final audit of the COUNTY's CRF project, unless a longer period is required to resolve audit findings or litigation. In such cases, the COUNTY will request a longer period of record retention. 3. Audits and Inspections All CONTRACTOR records with respect to any matters covered by this Agreement will be made available to the COUNTY, Commerce, and duly authorized officials of the state and federal government, at any time during normal business hours, as often as deemed necessary, to audit, examine, and make excerpts or transcripts of all relevant data. Any deficiencies noted in audit reports must be fully cleared by the CONTRACTOR within 30 days after receipt by the CONTRACTOR. Failure of the CONTRACTOR to comply with the above audit requirements will constitute a violation of this Agreement and may result in the withholding of future payments. The CONTRACTOR that expends $750,000 or more in a fiscal year in federal funds from all sources hereby agrees to have an annual agency audit conducted in accordance with current COUNTY policy concerning CONTRACTOR audits and 2 CRF 200.501. The Catalog of Federal Domestic Assistance (CFDA) number is 21.019. C. Reporting 1. Program Income Page 10 of 14 The CONTRACTOR will report annually all program income (as defined at 24 CFR 570.500(a)) generated by activities carried out with CRF funds made available under this Agreement. The use of program income by the CONTRACTOR will comply with the requirements set forth at 24 CFR 570.504. 2. Periodic Reports The CONTRACTOR, at such times and in such forms as the COUNTY may require, will furnish the COUNTY such periodic reports as it may request pertaining to the work or services undertaken pursuant to this Agreement, the costs and obligations incurred or to be incurred in connection therewith, and any other matters covered by this Agreement. 10. SEVERABILITY If any provision of this Agreement is held invalid, the remainder of this Agreement will not be affected thereby and all other parts of this Agreement will nevertheless be in full force and effect. 11. PERFORMANCE WAIVER The COUNTY's failure to act with respect to a breach by the CONTRACTOR does not waive its right to act with respect to subsequent or similar breaches. The failure of the COUNTY to exercise or enforce any right or provision will not constitute a waiver of such right or provision. 12. ENTIRE AGREEMENT This Agreement constitutes the entire agreement between the COUNTY and the CONTRACTOR for the use of funds received under this Agreement and it supersedes all prior communications and proposals, whether electronic, oral, or written between the COUNTY and the CONTRACTOR with respect to this Agreement. Page 11 of 14 IN WITNESS WHEREOF, the COUNTY and the CONTRACTOR have executed this Agreement as of the date and year Last written below. Mason County Economic Development Council of Mason County By: , If By: Sharon Trask, Chair Date: I1' fiat Approved As To Form: Tim Whitehe Ct TDPA Jennifer8ar' -, Executive Director Date: 1\• leOU Page 12 of 14 EXHIBIT A SCOPE -OF -WORK The Economic Development Council of Mason County (EDC) will be responsible for completing the tasks and activities below as well as others as detailed throughout this AGREEMENT, Washington Department of Commerce's (Commerce) guidance as required to provide referral and direct services in compliance with the CRF program and Mason County's (COUNTY) policies and procedures. It is the EDC's responsibility to review, understand, implement and adhere to all requirements as this Scope -of -Work is a summary, not an exhaustive list. CONTRACTOR will: 1. Conduct applicant eligibility screening for Mason County businesses to determine program eligibility incompliance with CRF requirements. 2. Require businesses to complete an intake form that includes a "double dipping" disclaimer as part of the eligibility screening: businesses who did not receive equal to or greater than $5,000 in COVID-19 support grants will be given preference. 3. Provide emergency grants of up to $15,000 each to eligible businesses with less than 20 employees; provide emergency grants of up to $30,000 to eligible businesses with 21 or more employees. To enable these small businesses to retain the level of employees as close to January 2020 levels in response to the COVID-19 crisis and to cover the cost of business interruption caused by required closures related to the COVID-19 pandemic mitigation . 4. Provide the opportunity for each non-profit organizations engaged in COVID-19 support activities to submit an application. 3. Collect, track and report PROJECT data in a manner consistent with the requirements detailed in this AGREEMENT, COMMERCE's guidance's as applicable. CONTRACTOR must ensure that the services provided to eligible individuals under this PROJECT are not reported to any other funding entities for the purpose of meeting contractual obligations. 4. Voucher Requests and Reports: A. Formulate and submit a Washington State Voucher Distribution request (form A19) for the entire amount of the Grant to the COUNTY. Submission to include one digital copy in WORD e-mailed to Kelly Bergh. B. Formulate and submit a CFR Monthly Beneficiary Reporting Form and a CRF Project Status Report to COUNTY. A digital copy is acceptable e-mailed to Kelly Bergh. COUNTY will be responsible for submitting completed forms and reports to COMMERCE. See Exhibit E Sample Forms and Instructions Kelly Bergh Mason County 411 N. 5th Street Shelton, WA 98584 Page 13 of 14 kbergh@co.mason.wa.us 5. Participate in PROJECT meetings, including a grant start-up meeting, as scheduled by COUNTY. 6. Participate and support on -site compliance reviews conducted by COUNTY per CRF requirements. 7. Assist COUNTY with all aspects of program administration and requirements including grant close-out process as requested. Page 14 of 14