AGREEMENT - COVID19 RELIEF FUND ERIE COUNTY SMALL BUSINESS RECOVERY GRANT PROGRAM
THIS AGREEMENT made on the day of application submittal, by and between 43North SP 1 LLC, a New York not-for-profit limited liability company (“43North”) on behalf of the County of Erie, New York (hereinafter referred to as “COUNTY”) and the business indicated on the signature page hereto (hereinafter referred to as “BUSINESS”). 43North, the COUNTY and the BUSINESS shall hereinafter be referred to jointly as the Parties.
WHEREAS, pursuant to the Coronavirus Aid, Relief, and Economic Security Act (“CARES Act”) the COUNTY received approximately twenty million dollars from the United States Government (“CARES Act Funds”); and
WHEREAS, the CARES Act provides for payments to local small businesses adversely impacted by the COVID-19 outbreak via the Coronavirus Relief Fund; and
WHEREAS, the United States Department of Treasury has issued guidelines and interpretations with regard to the authorized use of funds allocated to local governments under the CARES Act; and
WHEREAS, this Agreement is intended to assist local small businesses adversely affected by the COVID-19 pandemic and the government and private responses to contain the pandemic; and
WHEREAS, under the CARES Act, should the Office of the Inspector General determine that the funds were used in a manner contrary to the intent of the Congress or contrary to the United States’ Department of Treasury guidelines and interpretations, the CARES Act provides that the federal government may recoup the improperly spent funds from the COUNTY; and
WHEREAS, the COUNTY, as the jurisdiction responsible for disbursement of funds under the CARES Act, finds that it is appropriate to use these funds to defray certain costs incurred by the BUSINESS related to the coronavirus emergency, such program being referred to herein as the Erie County Small Business Recovery Grant Program (the “Program”); and
WHEREAS, the COUNTY has engaged 43North to act as its administrator the Program; and
WHEREAS, following the disbursement of funds, 43North assigns its rights and duties under this Agreement to the COUNTY;
NOW, THEREFORE, the COUNTY and the BUSINESS hereby agree as follows:
1.0 Recitals, Definitions, and Purpose.
1.1 Recitals Incorporated. The recitals set forth above are incorporated in this Agreement by reference and made a part of this Agreement (“Agreement”).
1.2.1 “CARES ACT funds” shall refer to funds which have been allocated to the COUNTY under the Coronavirus Aid, Relief, and Economic Security Act (“CARES Act”) of which the COUNTY is responsible for the disposition.
1.2.2 “Forms” shall refer to forms or application documents (including on-line documents) used to seek recovery assistance from corona virus related impacts under this agreement.
1.2.3 All other words used in this agreement which are not specifically defined shall have their normal and ordinary meaning.
1.3 Purpose. The purpose of this Agreement is to establish a contractual relationship between 43North and BUSINESS, initially, and then the COUNTY and BUSINESS following disbursement of the funds with regards to a Grant hereunder (“Grant”) to cover eligible expenses of the BUSINESS associated with the coronavirus emergency from federal CARES Act Funds which the United States Federal Government has disbursed to the COUNTY. This agreement shall remain in effect between the parties to govern the form of application for the Grant, the review of the application, the criteria for eligible expenses, the retention of documents, and other material terms governing the processing of Grant applications and subsequent review of use of the Grant proceeds.
2.0 Obligations of the COUNTY.
2.1 Grant. 43North by its acceptance and selection of the grant application hereby approved a Grant to the BUSINESS in the amount determined by 43North, based on the Program criteria (“Grant”). Said Grant to be used by the BUSINESS exclusively for the purposes permitted under the CARES Act, the United States Department of the Treasury guidelines and interpretations, as current exist or as may be amended and supplemented in the future, the COUNTY guidelines, and as set forth in the program guidelines. If the BUSINESS complies with this Agreement, no repayment will be required. If, however, the BUSINESS does not comply with this Agreement the COUNTY may seek partial or full repayment of the Grant. No interest shall accrue on this Grant.
2.2 No further obligations. 43North and the COUNTY shall have no other obligations under this Agreement other than those expressly set forth.
3.0 Obligations of the BUSINESS.
3.1 Generally. The BUSINESS shall use the Grant proceeds exclusively for the purposes permitted under the CARES Act, the United States Department of the Treasury guidelines and interpretations, as current exist or as may be amended and supplemented in the future, the COUNTY guidelines, and as set forth in the on-line application used in the Program (“Eligible Expenses”). In order to achieve the 43North’s approval of the BUSINESS’s use of the Grant proceeds provided hereunder, BUSINESS agrees to submit the forms, certifications and documentation as may be required by 43North which document any expense for which BUSINESS has used or will use by December 30, 2020, the Grant proceeds under this Agreement. BUSINESS agrees that the sole and exclusive decision as to whether or not BUSINESS’s use of the Grant proceeds is approved lies within the discretion of 43North and the COUNTY. BUSINESS agrees that43North and/or the COUNTY may deny approval of the use of the Grant proceeds which, in the discretion of the COUNTY, is not a permitted use of CARES Act Funds. The parties also agree that the use of the Grant proceeds that may otherwise be eligible under the CARES Act may be rejected by 43North and/or the COUNTY in their sole discretion and that neither 43North nor the COUNTY is under any obligation to approve any particular use of the Grant proceeds. Any portion of the Grant proceeds that is not used for said Eligible Expenses shall be repaid to the COUNTY..
4.0 Form of Expense Submittals, Certification, failure to use forms or comply with criteria.
4.1 Generally. The Parties agree that expenses for which BUSINESS uses the Grant proceeds shall be submitted upon the forms and in the manner as may be required by 43North. BUSINESS agrees to utilize these forms exclusively in seeking approval of the expenses related to the coronavirus emergency.
4.2 Certification. The BUSINESS certifies that the expenses for which BUSINESS used (or will use prior to December 30, 2020) the Grant proceeds: (i) are necessary expenditures incurred due to the public health emergency with response to the Coronavirus Disease 2019, (ii) were incurred or will be incurred during the period between March 1, 2020 and December 30, 2020, and (iii) meet the criteria set forth in the United States Department of Treasury guidelines and interpretations, both current and as they may be amended and supplemented in the future. The BUSINESS also certifies that the BUSINESS is in good standing, has no debts to the COUNTY, and is not debarred by the Federal Government. The BUSINESS agrees that if it is reimbursed for expenses not expended prior to the date hereof, it may be called upon to certify that such funds were expended for approved expenses prior to December 30, 2020. Such follow-on certification shall be submitted to 43North by January 31, 2021 (the “Due Date”).
4.3 Representation of Business. The BUSINESS represents to 43North and the County that the expenses for which it is seeking reimbursement under the Program arise from the economic harm suffered by the BUSINESS as a consequence of the coronavirus emergency which has caused the BUSINESS to suffer a loss of 25% or more of its pre-coronavirus business. The BUSINESS agrees that the representations it made in the application for this Grant are being relied upon by 43North and the County in making this Grant and complying with the terms of the CARES Act. All of the representations of the BUSINESS made in its application are incorporated herein by this reference.
4.4 Failure to comply with United States Department of Treasury Guidelines and Interpretations. 43North and/or the COUNTY reserves the right to reject any use of the Grant proceeds which it determines, in its sole and exclusive discretion, does not meet the criteria of the CARES Act or United States Department of Treasury guidelines and interpretations, both current and as may be amended and supplemented in the future, associated with disbursement of funds under the CARES Act.
4.5 BUSINESS shall not use the Grant proceeds for any expense which the BUSINESS has submitted or will submit to any other entity, whether public or private, for reimbursement. Should BUSINESS at any time receive reimbursement for any expense for which the Grant proceeds have been already used, the BUSINESS shall within 14 days refund those Grant proceeds to the COUNTY.
5.0 Prohibition on duplicate reimbursement.
5.1 BUSINESS shall not be entitled to payment of expenses by the Grant proceeds for which it has sought or obtained reimbursement from another County, State, or federal program designed to assist businesses in recovering from the coronavirus emergency or other emergencies.
6.1 BUSINESS agrees to abide by the terms of the CARES Act and all United States Department of Treasury guidelines and interpretations, both current and as may be amended and supplemented in the future.
6.2 BUSINESS shall, at 43North’s or the COUNTY’s request, supply 43North or the COUNTY with all relevant information for the COUNTY to evaluate whether a request for approval meets the criteria under the CARES ACT and United States Department of Treasury guidelines, both current and as may be amended and supplemented in the future.
6.3 BUSINESS agrees that to the extent any CARES Act funds paid to it under this Grant are not reasonably anticipated to be expended by BUSINESS for CARES Act eligible expenses by December 30, 2020, BUSINESS agrees that it shall return any such unused funds to the COUNTY by December 10, 2020. Notwithstanding the forgoing, should any unused funds remain in possession of BUSINESS after December 30, 2020, BUSINESS shall return such unused funds to COUNTY as soon as practicable. Any funds returned to COUNTY under this section shall be returned by check made out to the Erie County Comptroller and sent to the attention of the Erie County Director of Budget and Management at 95 Franklin Street, 16th Floor, Buffalo, New York 14202 with a notation on the memo line stating “Small Business CARES Act Fund Return” along with the name and address of your business.
7.1 BUSINESS shall maintain all records relating to the expenses which BUSINESS uses the Grant proceeds for a period of at least ten (10) years or the period of time required by other state or federal law, whichever is longer.
7.2 At any time, 43North or the COUNTY may request that the BUSINESS provide records relating to the expenses for which BUSINESS uses the Grant proceeds. BUSINESS agrees to provide records in response to such requests.
7.3 Failure to provide records may result in the denial of 43North’s or the COUNTY’s approval of the use of the Grant proceeds. In circumstances where the use of the Grant proceeds has been granted and the records are needed to justify the use to the Office of the Inspector General or any other office, official, or department which may later become responsible for auditing disbursements of CARES Act Funds, failure by BUSINESS to provide these records, for any reason in a timely fashion, including the prior destruction of these records, shall constitute a breach of this Agreement. The sole and exclusive remedy for such a breach is that BUSINESS shall be responsible for repayment of any portion of the Grant proceeds which the Office of Inspector General, or its successor, finds improper, unsupported, or unable to be verified. Additionally, BUSINESS agrees to indemnify 43North and the COUNTY or make the COUNTY whole for any penalty assessed against the COUNTY based upon BUSINESS’s failure to retain or provide records for the period provided in 7.1.
8.1 The Parties agree that time is of the essence in the processing of applications for the Grant.
8.2 The Parties agree that time is of the essence in communications seeking supporting documents or requesting records under this agreement. The Parties agree that they shall use all reasonable speed and diligence in responding to requests for records or supporting documents.
9.1 The Parties agree that where 43North and the COUNTY may rely upon the certification of the BUSINESS that such expenses which BUSINESS used the Grant proceeds met the minimum requirements of the CARES Act, and where the Office of the Inspector General, or any other person, official, or department which is charged with the auditing and review of expenditures of CARES Act Funds determines that such use was not permitted under the CARES Act, BUSINESS agrees to indemnify, reimburse and make whole 43North and the COUNTY for any funds which the United States Government or its agencies seeks to recoup or collect, either by litigation, or by withholding other federal funds owed to the COUNTY. BUSINESS further agrees to indemnify, reimburse, or make whole the 43North and the COUNTY for any penalties associated with the federal government seeking to recoup the expended CARES ACT funds which the COUNTY disbursed to BUSINESS including interest, attorney’s fees or any penalty provided by law.
9.2 BUSINESS agrees to hold 43North and the COUNTY harmless for any evaluation or advice which the COUNTY provided to BUSINESS as to whether the requested reimbursement is a permissible use of the CARES ACT funds.
10.0 General Terms and Conditions.
10.1 Amendment. Any revision to this Agreement shall be made by written amendment to this Agreement. This Agreement, including exhibits attached hereto and incorporated herein by reference, represents the entire Agreement between the parties with respect to the subject matter hereof and supersedes all prior communications, agreements, and understandings relating thereto.
10.2 Assignment. The performance covered by this Agreement shall not be assigned or delegated by BUSINESS without the prior written consent of 43North or the COUNTY. As of December 30, 2020, the rights and responsibilities of 43North hereunder are assigned to the COUNTY. Any and all legal action arising from this Agreement shall be between the BUSINESS and the COUNTY.
10.3 Conflict of Interest. No officer, employee, consultant, elected or appointed officials of the COUNTY or 43North (and no one with whom they have family or business ties) shall obtain any personal or financial benefit of the funds to be administered herein.
10.4 Automatic Termination. If this Agreement is executed by BUSINESS and BUSINESS is not selected to receive a Grant, this Agreement shall terminate.
10.5 Notices. Any notice under this Agreement shall be sent by email to the following individuals at the indicated email addresses:
43 North SP 1 LLC
Seneca One Tower
1 West Seneca Street, 24th Floor
Buffalo, New York 14203
Atten: County Grants Program
To the COUNTY:
Andrew Federick, Senior Economic Development Specialist
Office of the Erie County Executive
95 Franklin St., 16th Floor
Buffalo, NY 14202
To the BUSINESS:
To the applicant based on the information provided on the application.
10.6 Counterparts. This Agreement may be executed in multiple counterparts, each of which shall be deemed an original, but all of which shall constitute one and the same instrument.
BUSINESS agrees to be bound by this Agreement by providing an electronic signature within in the application portal supplied by Ureeka, Inc. and used to apply for the Grant. Such electronic signature of the BUSINESS attached to the application shall constitute an effective and binding execution of this Agreement by all parties.