HomeMy WebLinkAbout1993-128
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RESOLUTION NO. 93-128
RESOLUTION OF THE MAYOR AND COMMON COUNCIL OF THE CITY OF
SAN BERNARDINO AUTHORIZING AND DIRECTING THE EXECUTION OF A SMALL
BUSINESS LOAN AGREEMENT BETWEEN THE CITY OF SAN BERNARDINO AND
DANNY'S TOWING
BE IT RESOLVED BY THE MAYOR AND COMMON COUNCIL OF THE CITY
OF SAN BERNARDINO AS FOLLOWS:
SECTION 1.
The Mayor of the City of San Bernardino is
7 hereby authorized and directed to execute, on behalf of said City
8 of San Bernardino, a loan agreement with DANNY'S TOWING, which
9 loan agreement is attached hereto as Exhibit "1" and '8
10 incorporated herein by reference CIS though fully set forth at
11 length. The Agreement provides for the loaning of funds from the
12 Small Business Loan program in the amount of $75,000.00.
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14
15
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27
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SECTION 2.
The authoriz,d::lons to execute the above
referenced Agreement are rescinded if the parties to the agreement
fail to execute same within sixty (60) days of the passage of this
Resolution.
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AB:km[DANNYTO.RESl
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I ' . ~ .,
RESOLUTION NO. 93-128
RESOLUTION OF THE MAYOR AND COMMON COUNCIL OF THE CITY OF
SAN BERNARDINO AUTHORIZING AND DIRECTING THE EXECUTION OF A SMALL
BUSINESS LOAN AGREEMENT BETWEEN THE CITY OF SAN BERNARDINO AND
DANNY'S TOWING
I HEREBY CERTIFY that the foregoing resolution was duly
adopted by the Mayor and Common Council of the City of San
Bernardino at en adjourned regular
meeting thereof, held on
the
10th
day of
May
, 1993 by the following
vote, to wit:
Council Members: AYES NAYS ABSTAIN ABSENT
ESTRADA X
REILLY x
HERNANDEZ x
MAUDSLEY x
MINOR x
POPE-LUDLAM x
MILLER X
li2~ ~
~lerk
of
The foregoing resolution is hereby
, 1993.
Mi'iY
~~.
w.. R:" Holc mb, ayor
City of San Bernardino
\L\~ day
Approved as to
form and legal content:
JAMES F, PENMAN,
City Attorney
By: /1--_..~.t:?- ()
../~
AB:km[DANNYTO.RESl
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RES93-l28
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EXHIBIT "1"
CITY OF SAN BERNARDINO
COMMUNITY DEVELOPMENT DEPARTMENT
"Economic Development Program"
(IDB-Financed)
BORROWER
Danny's Towing
PROJECT TITLE
Conditional Use Permit
PROJECT ADDRESS:
2305 West Highland, San Bernardino, CA
LOAN IS NUMBER
DEPARTMENT CONTRACTS.
OF COMMUNITY DEVELOPMENT
DAB:km[DANNYTO.TOC)
RES 93-128
TABLE OF
CON TEN T S
(IDB-Financed)
-----------------------------------------------------------------
Section
Number
SECTION I
S101.
S102.
S103.
S104.
S105.
SECTION II
S201.
S202.
S203.
S204.
SECTION III
S301.
S302.
S303.
SECTION IV
S401.
S402.
DAB: km[DANNYTO. TOCl
Title
Page
PARTIES, TERMS, CONDITIONS PRECEDENT
AND INDEPENDENT STATUS
2
Parties to the Agreement
2
Representatives of the Parties and
Service of Notices
2
Term of this Agreement
3
Conditions Precedent
3
Independent Contractor Status of
the Borrower
4
PURPOSE OF AGREEMENT AND NOTE, LOAN
TERMS, AND PROMISSORY NOTE
4
Purpose of the Agreement
4
Purpose of the Loan
4
Terms of the Loan
4
Promissory Note
5
REPRESENTATIONS AND COVENANTS OF
BORROWERS, AND DEFAULT
6
6
Representations of the Borrower
Covenants of the Borrower
8
Default
11
REPORTS, RECORDS AND AUDITS
14
Reporting Requirements
14
Maintenance of Records
l4
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RES 93-128
TABLE OF CONTENTS (Cant...)
(IDB-Financed Agreement)
------------------------------------------------------------
Section
Number
S403.
5404.
S405.
5406.
SECTION V
5501.
S502.
S503.
S504.
S505.
S506.
5507.
S508.
S509.
S510.
S511.
S512.
S513.
DAB:km[DANNYTO.TOC)
Title
Page
Audits and Inspections
15
Validity of Financial Documentation
Submissions
15
Release of Funds from Escrow
16
Reconveyance Fee
16
GENERAL TERMS AND CONDITIONS
16
Indemnification and Insurance
Requirements
16
Prohibition Against Assignment
19
Amendments and Waivers
19
Compliance with Statutes and
Regulations
19
Conflict of Interest
20
22
Political Activity Prohibited
Lobbying Prohibited
23
Installation of Financial Assistance
Sign
23
Press Releases
23
Discrimination Prohibited
23
Nondiscrimination, Equal Employment
Practices, and Affirmative Action
Program
23
Employment Opportunities for Business
and Lower Income Persons
24
Participation of Minorities, Women and
Small Businesses
26
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RES 93-128
Section
Number
S514.
S515.
S516.
S517.
S518.
SECTION VI
S601.
S602.
DAB; km[DANNYTO. TOC]
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TABLE OF CONTENTS (Cant...)
(IDB-Financed Agreement)
Title
Page
Captions
26
Effect of Legal Judgment
26
Choice of Law Governing this Agreement
26
Prohibition of Legal Proceedings
27
Rights and Remedies
27
ENTIRE AGREEMENT
27
Complete Agreement
27
Number of Pages and Attachment
28
Execution (Signature) Page
28
ATTACHMENTS
Attachment I -- Employment Action Plan 29
Attachment II -- Insuranc~ Requirements 29
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RES 93-128
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AGREEMENT NUMBER 93-100
(IDB-Financed)
BETWEEN THE CITY OF SAN BERNARDINO AND DANNY'S TOWING (RELATING TO)
THE LOT MERGER AND CONDITIONAL USE PERMIT PROJECT
-----------------------------------------------------------------
THIS AGREEMENT is made and entered into by and between the
City of San Bernardino, a municipal corporation, hereinafter called
"City", and Danny's Towing, hereinafter called the "Borrower".
WIT N E SSE T H
WHEREAS, the City has entered into a Grant Agreement with the
United States Department of Housing and Urban Development,
hereinafter called the Grantor, pursuant to Title I of the Housing
and Community Development Act of 1974, as amended, hereinafter
referred to as HCDA, to address the community development needs of
the City; and
WHEREAS, the Community Development Department, hereinafter
called the "COD", has been designated by the City to provide for
proper planning, coordination and administration of the City's
programs as described in the City's Grant Agreement with the
Grantor, and of certain projects funded by the City; and
WHEREAS, the COD cooperates with private individuals and
organizations, other agencies of the City and agencies of other
governmental jurisdictions in carrying out certain functions and
programs which are its responsibility; and
WHEREAS, the Small Business Revolving Loan Fund program has
been established by the City as part of a City of San Bernardino
Economic Development Program ("EDP"), and has been approved by the
San Bernardino Mayor and Common Council; and
WHEREAS, Borrower has applied to the City for a loan to help
finance the project; and
WHEREAS, the City is willing to lend monies to the Borrower on
the terms and conditions set forth herein;
NOW, THEREFORE, in consideration of and in reliance upon the
foregoing and upon the covenants, agreements, representations and
warranties herein contained, the City and the Borrower agree as
follows:
OAB: km [DANNYTQ . AGR J
RES 93-128
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SMALL BUSINESS
IDB-Financed
Page -2-
LOAN AGREEMENT
SECTION I.
PARTIES, TERM, CONDITIONS PRECEDENT, AND INDEPENDENT STATUS
SlOl.
Parties to the Agreement.
The parties to this Agreement are:
1) The City of San Bernardino, a
municipal corporation, having its
principal office at 300 North "D"
Street, San Bernardino, California
92418.
2) The Borrower, Danny's Towing, having
its principal address at 2305 W.
Highland, San Bernardino.
The Borrower is a sole proprietor.
S102.
Representatives of the Parties and Services of Notices.
The representatives of the respective parties
who are authorized to administer this
Agreement and to whom formal notices, demands
and communications shall be given are as
follows:
1) The representative of the City shall
be, unless otherwise stated in the
Agreement:
Mr. Kenneth J. Henderson, Director
Community Development Department
201 N. "E" Street, Third Floor
San Bernardino, CA 92401
2) The representative of the Borrower shall be:
Dannv Alcarez
Danny's Towing
2305 West Highland
San Bernardino. CA 92405
DAB:km[DANNYTO.AGR]
RES 93-128
SMALL BUSINESS
IDB-Financed
Page -3-
LOAN AGREEMENT
3)
4)
S103.
Formal notices, demands and
communications to be given hereunder
by either party shall be made in
writing and may be effected by
personal delivery or by registered
or certified mail, postage prepaid,
return receipt requested and shall
be deemed communicated as of the
date of mailing.
If the name of the person designated
to receive the notices, demands or
communications or the address of
such person is changed, written
notice shall be given, in accord
with this section, within five (5)
working days of said change.
Terms of this Agreement.
This Agreement shall remain in full force and
effect from the date of execution by Borrower
of the Promissory Note, until such time as
said Promissory Note is paid according to its
terms subject to the provisions of S303
herein.
S104.
Conditions Precedent.
A.
Prior to the execution of this Agreement, the
Borrower shall submit to the City for approval
in writing an Affirmative Action Program Plan
in accordance with Section 511 herein.
Prior to the execution of this Agreement,
Borrower shall provide the City a copy of the
Fictitious Name Statement and evidence of the
proper filing thereof.
B.
DAB:km[DANNYTO.AGR]
RES 93-128
SMALL BUSINESS LOAN AGREEMENT
IDB-Financed
Page -4-
Sl05.
Independent Contractor Status of the Borrower.
The parties agree that the Borrower is an
independent contractor and that no employees
of the Borrower have been, are, or shall be
employees of the City by virtue of this
Agreement, and the Borrower shall so inform
each employee organization and each employee
who is hired or retained by it,
SECTION III.
S201.
PURPOSE OF AGREEMENT AND LOAN, LOAN TERMS, AND PROMISSORY NOTE
S202.
S203.
Purpose of the Agreement.
The purpose of this Agreement is to provide
** S~~~~Dx~x~~~nowmX){)(. of
EDP funds to be loaned by the City to the
Borrower, hereinafter call the "Loan", for the
purpose and under the terms and conditions set
forth herein.
Purpose of the Loan.
The purpose of the Loan is to provide
financial assistance to enable the Borrower
to:
Complete Conditional Use Permit requirements,
to receive a Certificate of Occupancy,
maintain the business registration,
certificate and continue to operate in the
City at the present location.
Terms of the Loan.
The City agrees to lend the Borrower, and the
Borrower agrees to borrow from the City, an
amount not to exceed SEVENTY-FIVE THOUSAND
DOLLARS, ($75,000.00), such transaction
hereinafter referred to as the "Loan", The
Loan is to be evidenced by, and made against
**EIGHTY-FOUR THOUSAND FOUR HUNDRED DOLLARS ($84,400) ~. ~~ ~
A.
DAB : km [DANNYTO . AGR J
RES 93-128
SMALL BUSINESS LOAN AGREEMENT
IDB-Financed
Page -5-
delivery of a Promissory Note executed by the
Borrower, hereinafter called the "Note" and by
this reference incorporated herein.
B. The Note shall (i) be dated as of the closing,
(ii) bear interest on the unpaid principal at
**the rate of~~~~ (iii)
be for a term of seven (7) years, and (iv)
provide for payment of the principal amount
thereof and the interest thereon in eighty-
four (84) equal monthly installments of ONE
THOUSAND THREE HUNDRED AND TWENTY FOUR AND
83/100 DOLLARS ($1,324.83), each including
principal and interest, and continuing until
said principal and interest are paid in full.
C.
Each monthly installment shall be
first to the pa~~ent of interest then
to the date the payment is received,
balance, if any, to the reduction
principal.
applied
accrued
and the
of the
S204.
Promissory Note.
A.
The obligation of the City to make the Loan is
subject to receipt by the City of the Note
and, at the City's sole discretion, to the
following additional conditions precedent:
1) The representations and warranties
made herein by the Borrower shall be
true and correct at the time of
consideration by the Mayor and
Common Council of the City of San
Bernardino with the same effect as
though made at the closing.
2) Receipt by the Ci ty from the
Borrower of all executed documents
in connection with this Agreement;
satisfactory in form and substance
to the City.
**eight percent (8%) per annum deferred for one year from the date of ~.~ ~
issuance of the Certificate of Occupancy.
DAB:km[OANNYTO.AGRl
RES 93-128
SMALL BUSINESS
IDB-Financed
Page -6-
LOAN AGREEMENT
3)
The City and the Borrower have
mutually agreed to the terms and
conditions as set forth in the
Employment Action Plan, which is
attached hereto as Attachment I and
by this reference is incorporated
herein,
B. The Note is to be secured as follows:
Type of Property
1. Real Property
Amount
Mortgage Balance
$130,000
$40,00
C.
Borrower shall have the right,
penalty, to prepay the Note together
accrued interest thereon as of the
such prepayment.
without
with the
date of
D. The Borrower acknowledges and agrees that the
amount being provided under this loan shall be
** for a total of ,
~ and that no additional funds to
cover additional project costs, anticipated or
unanticipated, incurred as a result of costs
overruns or expenses in financing this
project, are available under this Agreement.
SECTION III.
REPRESENTATIONS AND COVENANTS OF BORROWER, AND DEFAULT
S301.
Representation of the Borrower.
To induce City to enter
Borrower covenants and
that:
into this Agreement,
represents to City
1) The execution, delivery and
performance of the Note and this
Agreement by Borrower have been duly
authorized by Borrower. This
** EIGHTY-FOUR THOUSAND FOUR HUNDRED DOLLARS ($84,400)
p. ;I r1
DAB:km[DANNYTO.AGR]
RBS 93-128
SMALL BUSINESS LOAN AGREEMENT
lOB-Financed
Page -7-
Agreement constitutes a legal, valid
and binding obligation of Borrower,
enforceable in accordance with its
terms. The execution and delivery
of this Agreement and the note, and
consummation of the transactions
herein contemplated, will not
conflict with, or result in a breach
of, any of the terms, provisions or
conditions of any indenture,
contract, instrument or agreement,
including any partnership agreement,
to which Borrower or any of its
officers is a party. No approval,
consent or authorization of any
governmental authority is necessary
for the execution, delivery or
performance by the Borrower of this
Agreement or of any of the terms and
conditions.
2) Borrower has good and marketable title
to the real property identified in S204B
of this agreement, located at 2305 W.
Highland, San Bernardino, California,
and it is free and clear from all liens
except as set forth herein:
None
3) Borrower is in compliance with all
applicable statutes, laws,
regulations, and executive orders of
the United States of America and all
states, foreign countries, other
governmental bodies and agencies
having jurisdiction over its
business or properties, including
(without limitation) all tax laws,
and Borrower has not received notice
of any violation of such statutes,
laws, regulations or orders which
have not been remedied prior to the
DAB:km[DANNYTO.AGR]
RES 93-128
SMALL BUSINESS LOAN AGREEMENT
IDB-Financed
Page -8-
D.
E.
S302.
date of this Agreement. Borrower
possesses all licenses, tradenames,
trademarks, and permits as are
required for conduct of its business
without conflict with the rights of
others.
There is not pending or threatened against
Borrower, or any of its officers, any actions,
suits, proceedings or investigations at law or
in equity or before or by any federal, state,
municipal or governmental department,
commission board, bureau, agency or
instrumentality which, if determined
adversely, would be likely to have a
materially adverse effect on the business or
properties of Borrower.
Each and every financial statement, document
and record delivered by Borrower to the City
in connection ~Ii th this Agreement and the
proposed transaction hereunder is a true and
complete copy of said financial statement,
document or record, and fairly and accurately
reflects the information it purports to
portray. There has been no change in the
condition, financial or otherwise, of Borrower
as shown in the financial statements dated
March 31, 1993 , except changes in the
ordinary course of business, none of which,
individually or in the aggregate, has been
materially adverse.
Additional Covenants of the Borrower.
Borrower covenants and agrees that, from the
date hereof, until payment in full on the Note
and the interest thereon, that it will:
1) Pay the principal and interest on
the Note acco:cding to its terms.
2) Pay any other amounts that may be
due or become due and owing to the
DAB:km[DANNYTO.AGR]
RES 93-128
SMALL BUSINESS LOAN AGREEMENT
IDB-Financed
Page -9-
City under or pursuant to the terms
of this Agreement or the Note.
3) Execute and deliver all instruments,
and perform such acts, as the City
may reasonably deem necessary or
desirable to confirm and secure to
the City all rights and remedies
conferred upon the City by the terms
of this Agreement and Note.
4) In the event that Borrower shall
grant the City a security interest
in Real property as collateral under
S204(B) herein, then Borrower agrees
to maintain at Borrower's sole
expense a policy of title insurance
coverage equal to the amount of the
loan.
5) Give notice to the City of any event
that constitutes an Event of Default
as set forth in Section 303 of this
Agreement or that would, wi th
notice, or lapse of time or both,
constitute an Event of Default under
this Agreement. Notice shall
specify the nature of such Event of
Default.
6) Not enter into any agreement or
other commitment the performance of
which would constitute a breach of
any of the covenants contained in
this Agreement.
7) Use the Loan proceeds only for the
purposes stated in this Agreement
and for no other purpose or
purposes.
8) Observe all applicable federal,
state and local statutes and
regulations as well as City of San
Bernardino Ordinances as further
DAB:km[DANNYTO.AGR]
RES 93-128
SMALL BUSINESS LOAN AGREEMENT
IDB-Financed
Page -10-
defined and set forth in Section 504
of this Agreement.
9) Not violate any laws, ordinances,
governmental rules or regulations to
which it is subject and not fail to
obtain any licenses, permits,
franchises or other governmental
authorization necessary to conduct
its business, which violation or
failure to obtain might have a
material adverse effect on the
business, prospects, profits or
condition (financial or otherwise)
of Borrower.
10) Submit an Annual Employment Report
on or before the fifteenth (15th)
day of June for the year 1993. The
Annual Employment Report shall
detail Borrower's compliance with
the Employment Action Plan,
Attachment I attached hereto and by
this reference incorporated herein,
for the preceding twelve (12) month
period.
11) Maintain adequate insurance with
respect to the collateral and the
proprietorship business which is the
subject of this Agreement, with
reputable insurance companies. The
Borrower shall maintain insurance in
such amounts and against such risks
as is customary with companies in
the same or similar business; in
addi tion, said insurance coverage (s)
shall be in accordance with the
general insurance provisions of this
Agreement as specified in
S501(B)(5J, including fire, hazard
and general comprehensive liability
insurance, worker's compensation,
construction/rehabilitation
liability, to protect such business
DAB: km [DANNYTO. AGR]
RES 93-128
SMALL BUSINESS LOAN AGREEMENT
lOB-Financed
Page -11-
S303.
A.
and all property securing the City's
loan. Said insurance shall be
maintained throughout the term of
this loan. The City shall be named
as an additional insured, and the
policy or policies shall not be
subject to cancellation, reduction
or non-renewal without thirty (30)
days prior written notification to
the City Attorney by certified mail.
12) Pay all indebtedness and obligations
promptly in accordance with normal
terms and promptly pay and discharge
or cause to paid and discharged all
taxes, assessments and governmental
charges or upon any of its property,
real, personal or mixed, or upon any
part thereof, respectively, before
the same shall become in default.
Default.
The entire unpaid principal of the Note, and
interest then accrued thereon, shall become
and be forthwith due and payable upon written
demand by the City or the City's assigns,
without any other notice or demand of any kind
or any presentment or protest, if anyone of
the fOllowing events (herein called an "Event
of Default") shall occur and be continuing at
the time of such demand, whether voluntarily
or involuntarily, or, without limitation,
occurring or brought about by operation of law
or pursuant to or in compliance with any
judgment, decree or order of any court or of
any order, rule or regulation of any
governmental body, provided however that such
sum shall not be payable if Borrower's
payments have been expressly extended by the
City or the City's assigns. "Events of
Default" shall include:
DAB:km[DANNYTO.AGRJ
RES 93-128
,
SMALL BUSINESS
IDB-Financed
Page -12-
LOAN AGREEMENT
1)
Payment of any installment of
principal or interest on the Note is
not paid when due and such payment
remains unpaid for thirty (30) days.
2)
Borrower fails to pay when due, or
declared due, the obligations
secured under this Agreement.
3)
Borrower fails to perform or comply
wi th any
covenants
Agreement
securing
Agreement.
terms, conditions, or
as provided in this
or in any instruments
or related to this
4) If any representation or warranty
made by the Borrower in this
Agreement shall prove to be untrue
in any material respect, or if any
report, financial statement or
financial schedule or other
instrument delivered under or
pursuant to this Agreement or the
transactions contemplated herein, to
the City or to any other holder of
the Note shall prove to be untrue in
any material respect as of the date
as of which made.
5) A court enters a decree or order for
relief in respect of the Borrower in
an involuntary case under any
applicable bankruptcy, insolvency or
other similar law now or hereafter
in effect, or appoints a receiver,
liquidator, assignee, custodian,
trustee, sequestrator (or similar
official) of the Borrower or for any
substantial part of its property, or
orders the winding up or liquidation
of its affairs and such decree or
order remains unstayed and in effect
for a period of sixty (60)
consecutive days.
DAB: km [DANNYTO. AGR]
RES 93-128
SMALL BUSINESS
IDB-Financed
Page -13-
6)
8)
9)
DAB: km [DANNYTO. AGR]
LOAN AGREEMENT
The occurrence ( i ) of Borrower's
becoming insolvent or bankrupt, or
ceasing, being unable, or admitting
in writing its inability to pay its
debts as they mature, or making a
general assignment for the benefit
of, or entering into any composition
or arrangement with creditors; (ii)
of proceedings for the appointment
of a receiver, trustee or liquidator
of Debtor, or of a substantial part
of its assets, being authorized or
instituted by or against it; or
(iii) of proceedings under any
bankruptcy, reorganization,
readjustment of debt, insolvency,
dissolution, liquidation or other
similar law of any jurisdiction
being authorized or instituted by or
against the Borrower.
7)
A cessation or substantial reduction
of operations in the business which
is the subj ect of this Agreement
under circumstances indicative to
the City of a lack of intention or
ability to provide continuing
employment and economic benefits for
the area in which the business is
located.
Failure to submit the Annual
Employment Report referred to in
S302(11) within ninety (90) days of
the scheduled due date for said
Report.
The loss, theft, substantial damage,
destruction, abandonment, sale or
encumbrance to or of any of the
collateral securing payment of the
Note, in any manner not fully
covered by insurance, or the making
of any levy, seizure or attachment
thereof or thereon.
RES 93-128
SMALL BUSINESS LOAN AGREEMENT
IDB-Financed
Page -14-
B. If Borrower s all at any time default in
making any paym nt of principal or interest on
the Note, Borr wer shall to the full extent
permi tted by 1 w, pay to the city or other
holder of the ote, in addition to any other
amounts that ma be due from Borrower to such
holder, an am unt equal to the reasonable
costs and expen es incurred by such holder, in
its efforts to rotect its collateral, secure
payment, or 0 erwise defend its interests
hereunder in a y judicial or administrative
proceeding.
SECTION IV.
S401.
REPORTS, RECORDS AND AUDI S
S402.
Re
A.
At such times
may require, t
City such stat
and informati
pertaining to
Agreement.
ements.
nd in such forms as the City
ere shall be furnished to the
ments, records, reports, data
as the City may request
matters covered by this
B. Borrowers will provide its financial and
accounting sta ements to the Ci ty for the
period ending ecember 31, 1993 and annually
thereafter duri g the term of this Agreement,
but not later t an three (3) months following
the expiration f any such period, and at each
other time and in such form as the City may
prescribe.
Maintenance of ecords.
A. Records, in t eir original form, shall be
maintained in c cor d a n C e wit h the
requirements pr scribed by the Grantor and the
Ci ty with resp ct to all matters covered by
this Agreemen Such records shall be
retained for a period of six (6) years after
termination of this agreement and after all
other pending atters are closed. "Pending
Matters" inclu , but are not limited to, an
audit, litigati n, or other actions involving
DAB:km[DANNYTO.AGR]
RES 93-128
SMALL BUSINESS LOAN AGREEMENT
IDB-Financed
Page -15-
B.
S403.
A.
B.
S404.
records. The City may, at its discretion,
take possession of and retain said records.
Records in their original form pertaining to
matters covered by this Agreement shall at all
times be retained within the City of San
Bernardino, or some other location
specifically authorizing in writing by the
Director of Community Development, unless
authorization to remove them is granted in
writing by the City.
Audits and Inspections.
At any time during normal business hours and
as often as the Grantor, the U.S. Comptroller
General, Auditor General of the State of
California or the City may deem necessary, the
Borrower shall make available to the City for
examination, all of its records with respect
to all matters covered by this Agreement. The
City, Auditor General of the State of
California, Grantor, and the U.S. Comptroller
General shall have the authority to audit,
examine and make excerpts or transcripts from
records, including all contracts, invoices,
materials, payrolls, records of personnel,
conditions of employment and other data
reflecting to all matters covered by this
Agreement.
The City shall have the authority to make
physical inspections and to require such
physical safeguarding devices as locks,
alarms, safes, fire extinguishers, sprinkler
system, etc., to safeguard property and/or
equipment funded or secured by this Agreement.
Notwithstanding such inspection authority,
Borrower is solely responsible for the
provision of security and for the safe
guarding of the business and its property.
Validity of Financial Documentation Submissions.
Financial reports required to be prepared and
submitted by the Borrower to the City shall be
accurate and correct in all respects.
DAB: km [DANNYTO. AGR]
RES 93-128
SMALL BUSINESS LOAN AGREEMENT
IDB-Financed
Page -16-
S405.
A.
B.
S406.
SECTION V.
Release of Funds from Escrow.
All loan proceeds shall be deposited into an
escrow account with an escrow company
designated by the City. Disbursement of funds
shall be jointly authorized by the Borrower
and the City. Each disbursement shall be in
accordance with S202 "Purpose of the Loan" and
shall be properly supported by invoices,
vouchers, executed payrolls, time records or
other documentation evidencing an expenditure
and/or encumbrance of funds.
The costs associated with the loan such as
escrow fees, credit reports (TRW), title
reports, or other similar costs shall be
delineated in the escrow instructions and
disbursed from the loan proceeds upon opening
of the escrow account.
Reconveyance Fee.
In the event that real property is used to
secure this Loan, then Borrower agrees to pay
any costs incident to title reconveyance,
including, if applicable, trustee's fees,
attorney fees, document preparation fees,
recording fees or any other related expenses.
S501.
GENERAL TERMS AND CONDITIONS
Indemnification and Insurance Requirements.
A.
Indemnification:
The Borrower undertakes and agrees to defend,
indemnify and hold harmless the City and any
and all of the City's officers, agents,
employees, assigns, and successors in interest
from and against all suits and causes of
action, claims, cost of litigation, damage or
liability of any nature whatsoever, for death
or injury to any person, including Borrower's
employees and agents, or damage or destruction
to any property of ei ther party hereto or
third persons in any manner arising by reason
DAB: km [DANNYTO. AGR]
RES 93-128
SMALL BUSINESS LOAN AGREEMENT
IDB-Financed
Page -17-
of or incident to the performance of this
Agreement on the part of the Borrower or
subborrower any act whether or not contributed
to by any act or omission, active or passive,
negligent or otherwise, except for the sole
negligence of the City, or the sole negligence
of any of the City's officers, agents or
employees. Ci ty approval of the Borrower's
performance, or failure to object, shall be no
defense to Borrower concerning its undertaking
herein to defend and indemnify City and
others.
B. Insurance:
1) The Borrower shall provide and
maintain at its own expense
throughout the term of this
Agreement the insurance requirements
specified herein. Evidence of
insurance shall be submitted for
approval by the City. The City
special endorsement forms,
referenced hereto and incorporated
by reference, are the preferred form
of evidence of insurance.
Al ternatively, Borrower may submit
two (2) certified copies of the full
policy containing the appropriate
cancellation notice language and
additional insured/loss payee
language as specified.
2) No release of funds from the Escrow
Account shall be made to the
Borrower until such time as the
Borrower has complied with all
insurance and bonding requirements
under this Agreement. The City's
Addi tiona1 Insured Endorsement form,
or a form approved by the City,
stating that the Borrower is so
insured, must accompany any demand
for funds unless said form has been
previously submitted and approved by
the City. (Certification of
insurance shall be procured, filed
DAB:km[DANNYTO.AGR]
RES 93-128
SMALL BUSINESS LOAN AGREEMENT
IDB-Financed
Page -18-
and approved in strict compliance
with City rules and regulations.)
3) With respect to the interests of the
Ci ty, such insurance shall not be
canceled, reduced in coverage or
limited or non-renewed, except after
thirty (30) days written notice by
receipted delivery has been given to
the Office of the City Attorney,
City Hall, 300 North "0" Street, San
Bernardino, CA 92418-0001.
POlicies of insurance and fidelity
bonds, except for pOlicies covering
Worker's Compensation and Employee's
and Volunteer's Owned and/or Leased
Vehicles, shall name the City as an
Additional Insured and said
endorsements or other evidence of
insurance shall so indicate,
Fidelity bonds shall name the City
as loss payee or additional insured.
In the event of any cancellation,
non-renewal, reduction or limitation
of coverage, or notice that such
will be effected, City may, but is
not required to, obtain insurance to
protect its interest, in which event
the cost thereof shall be reimbursed
by Borrower forthwith. Any failure
to forthwith reimburse such expense
shall constitute an Event or
Default.
4) The City reserves the right at any
time during the term of this
Agreement to change the amounts and
types of insurance required
hereunder by giving Borrower ninety
(90) days written notice.
5) The Borrower shall maintain minimum
insurance coverages prescribed in
Attachment II of this Agreement,
which by this reference is
incorporated herein.
DAB:km[DANNYTO.AGRl
RES 93-128
SMALL BUSINESS LOAN AGREEMENT
IDB-Financed
Page -19-
S502.
A.
B.
S503.
Prohibition Against Assignment.
The Borrower shall not assign this Agreement,
nor assign or transfer any interest or
obligation in this Agreement (whether by
assignment or novation) without prior written
consent of the City. No part of the property
securing this Agreement shall be assigned or
transferred (except sales of inventory in
the ordinary course of business), nor shall
such property be pledged, without the prior
written consent of City.
The Borrower shall not enter into any
agreement with any other party under which
such other party shall become the recipient
of claims due or to become due to the Borrower
from the City without prior written consent
of the City.
Amendments and Waivers.
This Agreement may not be changed or amended orally, and
no waiver hereunder may be oral, but any change or
amendment hereto or any waiver hereunder must be in
writing and signed by the party or parties against whom
such change, amendment, or waiver is sought to be
enforced.
S504.
A.
Compliance with Statutes and Regulations.
The Borrower warrants and certifies that in
the performance of this Agreement, it shall
comply with all applicable statutes, rules,
regulations and orders of the United States,
the State of California, the County and City
of San Bernardino, including laws and
regulations pertaining to labor, wages, hours
and other conditions of employment and the
City's anti-discrimination provisions and
Affirmative Action Plan which by this
reference is incorporated herein. Borrower
further warrants and certifies that it shall
comply with new, amended, or revised laws,
regulations, and/or procedures that apply to
the performance of this Agreement, upon being
provided notice thereof.
DAB:km[DANNYTO.AGRl
RES 93-128
SMALL BUSINESS LOAN AGREEMENT
IDB-Financed
Page -20-
Borrower covenants that the Davis-Bacon Act as
amended, the Contract Work Hours and Safety
Standards Act, and the Copeland "Anti-Kickback
Act" shall be a part of all construction
contracts awarded by the Borrower pursuant to
this Agreement and all subcontracts thereto.
S505.
Conflict of Interest.
A.
The Borrower covenants that none of its
directors, officers, employees, or agents
shall participate in selecting subcontractors,
or administering subcontracts supported (in
whole or in part) by federal funds where such
person is a director, officer, employee or
agent of the subcontractor, or where such
person knows or should have known that:
1) A member of such person's immediate
family, or partner, or organization
has a financial interest in the
subcontract;
2) The subcontractor is someone with
whom such person has negotiated or
is negotiating any prospective
employment, or;
3) The participation of such persons
would be prohibited by the
California Political Reform Act,
California Government Code Section
87100 et seq., if such person were a
public officer, because such person
would have a "financial or other
interest" in the subcontract.
B. Definitions:
1) The Term "immediate family"
includes, but is not limited to,
those persons related by blood or
marriage, such as husband, wife,
father, mother, brother, sister,
son, daughter, father-in-law,
mother-in-law, brother-in-law, son-
in-law and daughter-in-law.
DAB:km[DANNYTO.AGR]
RES 93-128
SMALL BUSINESS LOAN AGREEMENT
IDB-Financed
Page -21-
2)
The term "financial or
interest" includes, but
limited to:
other
is not
(a) Any direct or indirect
financial interest in the
specific contract,
including a commission or
fee, a share of the
proceeds, prospect of a
promotion or future
employment, a profit or
any other form of
financial reward.
(b) Any of the following
interest in the
subcontracting entity;
partnership interest or
other beneficial interest
of five percent (5%) or
more of the stock;
employment in a
managerial capacity; or
membership on the board
of directors or governing
body. This provision
shall not apply to
serving on the board or
governing body of a non-
profi t corporation for
which no salary is paid
or other compensation.
C. The Borrower further covenants that no
officer, director, employee or agent shall
solicit or accept gratuities, favors, or
anything of monetary value, from an actual or
potential subcontractor, supplier, a party to
a subagreement, (or persons who are otherwise
in a position to benefit from the actions of
any officer, employee or agent).
D. The Borrower shall not subcontract with a
former director, officer, or employee within a
one (1) year period following the termination
of the relationship between said person and
the Borrower.
DAB: km [DANNYTO. AGR]
RES 93-128
SMALL BUSINESS LOAN AGREEMENT
IDB-Financed
Page -22-
E. Prior to obtaining the City's approval of any
subcontract, the Borrower shall disclose to
the City any relationship, financial or
otherwise, direct or indirect, of the Borrower
or any of its officers, directors or
employees.
F. For further clarification of the meaning of
any of the terms used herein, the parties
agree that references shall be made to the
guidelines, rules and laws of the City of San
Bernardino, State of California, and federal
regulations regarding conflict of interest.
G.
H.
S506.
The Borrower warrants that it has not paid or
given and will not payor give to any third
person any money or other consideration for
obtaining this Agreement.
The Borrower covenants that no member,
officer, employee of Borrower shall have any
interest, direct or indirect, in any contract
or subcontract of the proceeds thereof for
work to be performed in connection with this
project during his/her tenure as such
employee, member or officer or for one (1)
year thereafter.
1.
The Borrower shall incorporate the foregoing
subsections of this section into every
agreement that it enters into in connection
with this project and shall substitute the
term "Subcontractor" for the term "Borrower"
and "Sub-contractor" for "Subcontractor".
Political Activity Prohibited.
None of the funds, materials, property or
services provided directly or indirectly under
this Agreement shall be used for any partisan
political activity, or to further the election
or defeat of any candidate for public office.
DAB:km[DANNYTO.AGR]
RES 93-128
SMALL BUSINESS LOAN AGREEMENT
IDB-Financed
Page -23-
S507.
Lobbying Prohibited.
None of the funds provided under this
Agreement shall be used for any purpose
designed to support or defeat any pending
legislation or administrative regulation.
S508.
Installation of Financial Assistance Plan.
The Borrower shall install, or cause to be
installed, for public display upon the project
premises a sign, with design approved by City,
identifying the Borrower as receiving
financial assistance from the City, if such a
sign is requested by the Director of Community
Development Department.
S509.
Press Releases.
In all communications with the press,
television, radio or any other means of
communicating with the general community, the
Borrower shall make specific reference to the
City of San Bernardino Community Development
Department as the sponsoring agency of the
project.
S510.
Discrimination Prohibited.
No person shall on the grounds of race,
religion, ancestry, color, national origin,
sex, age, or physical handicap, be excluded
from participation in, be denied the benefit
of, or be subj ected to discrimination under
this program/project. For purposes of this
Section, Title 24, Code of Federal Regulations
Section 570.601(b) defines specific
discriminatory actions which are prohibited
and correction action which shall be taken in
situations as defined therein.
S511.
Nondiscrimination, Equal Employment Practices and
Affirmative Action Program.
The Borrower shall comply with the
nondiscrimination and affirmative action
provisions of the laws of the United States of
America, the State of California, and the
DAB:km[DANNYTO.AGR]
RES 93-128
SMALL BUSINESS LOAN AGREEMENT
IDB-Financed
Page -24-
City. In performing this Agreement, the
Borrower shall not discriminate in its
employment practices against any employee, or
applicant for employment because of person's
race, religion, ancestry, color, national
origin, sex, age or physical handicap. Any
subcontract entered into by the Borrower
relating to this Agreement, to the extent
allowed hereunder, shall be subj ect to the
provisions of this paragraph.
5512.
Employment Opportunities for Business and Lower Income
Persons.
Any project/program funded in part or in whole
with Community Development funds shall comply
with the following provisions (referred to as
a Section 3 clause:)
(1) The work to be performed under this
contract (Agreement is on a project
assisted under a program providing
direct Federal financing assistance
from the Department of Housing and
Urban Development and is subject to
the requirements of Section 3 of the
Housing and Urban Development Act of
1968, as amended, 12 USC l701u.
Section 3 requires that, to the
greatest extent feasible,
opportunities for training and
employment be given to lower income
residents of the project area and
contracts (agreements) for work in
connection with the project be
awarded to business concerns which
are located in, or owned in
substantial part by persons residing
in the area of the project.
(2) The parties to this contract
(Agreement) will comply with the
provisions of said Section 3 and the
regulations issued pursuant thereto
by the Secretary of Housing and
Urban Development set forth in Title
24 CFR, Part 135, and all applicable
rules and order of the Department
DAB: km [DANNYTO. AGR]
RES 93-128
SMALL BUSINESS LOAN AGREEMENT
IDB-Financed
Page -25-
issued thereunder prior to the
execution of this contract
(Agreement) certify and agree that
they are under no contractual or
other disability which would prevent
them from complying with these
requirements.
(3) The Borrower will send to each labor
organization or representative of
workers with which he/she has a
collective bargaining agreement or
other contract or understanding, if
any, a notice advising the said
labor organization or worker's
representati ve of its commitments
under this Section 3 clause and
shall post copies of the notice in
conspicuous places available to
employees and applicants for
employment and training.
(4) The Borrower will include this
Section 3 clause in every
subcontract for work in connection
with the project and will, at the
direction of the applicant for or
recipient of Federal financial
assistance, take appropriate action
pursuant to the subcontract upon a
finding that the subcontractor is in
violation of regulations issued by
the Secretary of Housing and Urban
Development, 24 CFR, Part 135. The
Borrower will not subcontract with
any subcontractor where it has
notice of knowledge that the latter
has been found in violation of
regulations under Title 24, CFR 135
and will not let any subcontract
unless the subcontractor has first
provided it with a preliminary
statement of ability to comply with
the requirements of these
regulations.
( 5 ) Compl iance with the provisions of
Section 3, the regulations set forth
DAB:km[DANNYTO.AGR]
RES 93-128
SMALL BUSINESS LOAN AGREEMENT
IDB-Financed
Page -26-
in Title 24 CFR, Part 135, and all
applicable rules and order of the
Department issued thereunder prior
to the execution of the contract
<Agreement) shall be a condition of
the federal financial assistance
provided to the project, binding
upon the applicant or recipient for
such assistance, its successors, and
assigns. Failure to fulfill these
requirements shall subject the
applicant or recipient, its
contractors and subcontractors, it
successors and assigns to those
sanctions specified by the grant or
loan agreement or contract through
which federal assistance is
provided, and to such sanctions as
are specified by Title 24, CFR, Part
135.
S513.
Participation of Minorities, Women and Small Businesses.
To the fullest extent possible in the
administration of this Agreement, Borrower
agrees to provide opportuni ties for
minorities, women and small businesses to
participate in procurements under this
Agreement.
S5l4.
Captions.
The section headings appearing herein shall
not be deemed to govern, limit, modify or in
any way affect the scope, meaning or intent of
these conditions.
S515.
Effect of Legal Judgment.
Should any covenant, condition or provision
herein contained be held to be invalid by
final judgment in any court of competent
jurisdiction, the invalidity of such covenant,
condition or provision shall not in any way
affect any other covenant, condition or
provision herein contained.
S5l6.
Choice of Law Governing this Agreement.
DAB: km [DANNYTO. AGR]
RES 93-128
SMALL BUSINESS LOAN AGREEMENT
IDB-Financed
Page -27-
This Agreement shall
construed in accordance
State of California.
be governed by and
with the laws of the
S517.
Prohibition of Legal Proceedings.
The Borrower is prohibited from using Grant
funds received under this Agreement, or funds
realized as a result of this Agreement, for
the purpose of instituting legal proceedings
against the Ci ty or its official
representatives.
S51B.
Rights and Remedies.
In the event any party fails to perform, in
whole or in part, any promise, covenant, or
agreement herein, or should any representation
made by it be untrue, any aggrieved party may
avail itself to all rights and remedies, at
law or equity, in the courts of law. Said
rights and remedies are in addition to those
provided for herein.
SECTION VI.
ENTIRE AGREEMENT.
S601.
Complete Agreement.
This Agreement contains the full and complete
Agreement between the two parties. No verbal
agreement or conversation with any officer or
employee of either party shall effect or
modify any of the terms and conditions of this
Agreement.
DAB:km[DANNYTO.AGR]
RES 93-128
"
SMALL BUSINESS LOAN AGREEMENT
IDB.lFinanced
Page -28-
S602.
Number of Pages and Attachments.
This Agreement is executed in three (3)
duplicate originals, each of which is deemed
to be an original. This Agreement includes,
Twenty-eight (28) pages and Two (2)
attachments which consti tute the entire
understanding and agreement of the parties.
IN WITNESS WUEREOF, the City of San Bernardino and the
Borrower have caused this Agreement to be executed by their duly
authorized representatives on this 2nd day of July , 1993.
ATTEST:
CITY OF SAN BERNARDINO
~~f~
CJr'- ~
~OR ,MAYOR
City of San Bernardino
BY
~
Approved as to form
and legal content:
.JAMES F. PENMAN
City Attorney
~~~Q.).
DAB:kmfDANNYTO.AGR)
RES 93-128
SMALL BUSINESS LOAN AGREEMENT
IDB-Financed
Page -29-
ATTACHMENT I
"EMPLOYMENT ACTION PLAN"
Economic Development Program
Employment Action Plan
Statement of Borrower
Borrower does hereby state that the funds resulting from the
Loan Agreement entered into on behalf of the City of San Bernardino
(hereinafter "City") and Borrower shall be used solely for
furthering the purpose of the Economic Development Program (EDP).
The purpose of EDP assistance is to benefit the low and
moderate income residents of the City of San Bernardino through the
creation and/or retention of jobs to said persons. Pursuant to the
purpose of the EDP the Borrower agrees to comply with the following
Employment Action Plan:
Borrower understands and agrees that in order to determine
that said program purpose is being met, an Annual Employment Report
shall be filed with the City. Borrower understands that failure to
meet the objectives set forth in this Employment Action Plan or
failure to comply with the requirements of filing the Annual
Employment Report may result in the entire outstanding balance of
the loan plus interest, being due upon written demand by the City,
pursuant to Section 302 of the Loan Agreement and this Statement.
DAB'km[DANNYTO.AGRJ
RES 93-128
SMALL BUSINESS LOAN AGREEMENT
IDB-Financed
Page -30-
ATTACHMENT II
INSURANCE REQUIREMENTS
(Instructions for completing, executing and submitting Evidence of
Insurance to the City of San Bernardino.)
Insured: Danny A1carez dba Danny's Towing
(Contractor, Lessee, Permittee, Borrower, Etc.)
Agreement/Reference No. 93-100
Date:
A. INSURED
1. To expedite completion of the insurance
requirements, please give your insurance agent
or broker a copy of the Insurance Requirements
Sheet along with these instructions and
endorsement forms.
2. I f your agreement requires Workers'
Compensation coverage and you have been
authorized by the State of California to Self-
Insure Workers' Compensation, then a copy of
the certificate from the State consenting to
self-insurance will meet the evidence
requirements.
3. All questions relating to insurance should be
directed to the person or office responsible
for your contract, lease, permit, or other
agreement. (See items 9 and lO below.)
B. INSURANCE AGENT OR BROKER
1. Acceptable Evidence -- The appropriate City
Special Endorsements are preferred form of
evidence. No modifications to the form are
permi tted. Alternatively, certified copies of
the full policy containing additional insured
and thirty (30) day cancellation notice
language will be accepted subject to review by
the City Attorney. Certificates,
Verifications, Memoranda of Insurance and
other non-binding documents submitted along
are not acceptable as evidence of insurance.
Binders are acceptable as interim evidence
until policies are available.
DAB:km[DANNYTO.AGR]
RES 93-128
SMALL BUSINESS LOAN AGREEMENT
IDB-Financed
Page -31-
2. Multiple Policies More than one (1)
insurance pOlicy may be required to comply
with the insurance requirements. Endorsement
forms appropriate to your insured's agreement,
contract, lease or permit have been provided.
3. Signature Please have an authorized
representative of the insurance company
manually sign completed endorsement forms.
Signatures must be originals as the City
Attorney will not accept facsimile (rubber
stamp, photocopy, etc.) or initialed
signatures.
4. Underwriter -- The name and address of the
insurance company underwriting the coverage
must be noted on the endorsement form. In the
case of syndicates or subscription policies,
indicate lead underwriters or managing agent
and attach a schedule of subscribers,
including their personal participation.
5. Document Reference Include reference to
either the specific City agreement (bid,
contract, lease, etc.) or indicate that all
such agreements are covered.
C. INSURANCE REQUIREMENTS
1. Coverage and Limits The coverages and
1imi ts for each type of insurance are
specified on the insurance requirement sheet.
When coverage is on a scheduled basis, a
separate sheet may be attached to the
endorsement listing such scheduled locations,
vehicles, etc., so covered.
2. Excess Insurance Endorsements to excess
pOlicies will be required when primary
insurance is insufficient to comply with the
requirements.
3. Additional Pages -- If there is insufficient
space on the reverse side of the form to note
pertinent information, such as inclusions,
exclusions or specific provisions, etc.,
attach separate sheets and note this on the
endorsement form.
DAB: km [DANNYTO. AGR]
RES 93-128
SMALL BUSINESS LOAN AGREEMENT
IDB-Financed
Page -32-
4. Person to Contact -- Completed endorsements,
correspondence and questions relating to the
required insurance are to be directed to the
following representatives:
Wenger Day
302 South Milligan
Ontario, CA 91761
Street
(909) 986-6011
5. Technical Assistance -- Improperly completed
endorsements will be returned to your insured
for correction.
6.
Delay in submitting properly
endorsement forms may delay your
intended occupancy or operation.
completed
insured's
7. Renewals For extensions or renewals of
insurance policies which have the City's
endorsement formes) attached, we will accept a
renewal endorsement or a certificate (with an
original signature) as evidence of continued
coverage if it includes the statement that the
insurance protection afforded the City of San
Bernardino has been renewed under the same
terms and conditions as previously approved.
DAB: km [DANNYTO. AGR]
RES 93-128
, .
SMALL BUSINESS LOAN AGREEMENT
IDB-Financed
Page -33-
NAME Danny A1carez dba Danny's Towing
AGREEMENT/REFERENCE NUMBER 93-100
DATE
The following coverages noted with "X" are required with the
Combined Single Limits (CSL) as noted on the right. Unless written
exception is allowed by Risk Management, all coverages must add the
City as additional insured.
Limits
Worker's Compensation
Statutory
Employers Liability
( )
$ 100,000
Commercial
General Liability
( ) Broad Form Property Damage
( ) Personal Injury
( ) Broad Form Liability Endorsement
( ) Fire Legal Liability
( ) Garagekeepers Legal Liability
( ) Owned Automobiles
( ) Nonowned Automobiles
( ) Hired Automobiles
( )
$l,OOO,OOO
Automobile Liability (if auto is used for
this contract.)
$1,000,000
Professional Liability (if applicable)
Property Insurance
90% value of
building
(Contents at
100% of
value)
(
(
(
) Extended Coverage
) Vandalism and Malicious Mischief
) Business Interruption (90 days minimum)
$
(
(
) Crime (inside and outside)
) Sprinkler Leakage
(All fixed
costs plus
payroll )
$
DAB:kmIDANNYTO.AGR]
RES 93-128
. ,
. \.
, >
SMALL BUSINESS LOAN AGREEMENT
IDB-Financed
Page -34-
( ) other
Inland Marine:
(total cost of goods in transit at anyone time)
$
Comments:
DAB:km[DANNYTO.AGR]