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HomeMy WebLinkAbout1986-487 . 1 2 3 4 5 6 RESOLUTION NO. 86-487 RESOLUTION OF THE CITY OF SAN BERNARDINO ESTABLISHING A SMALL BUSINESS REVOLVING LOAN FUND, APPROVING GUIDELINES, AND DIRECTING THE COMMUNITY DEVELOPMENT DEPARTMENT TO ADMINISTER SMALL BUSINESS REVOLVING LOAN FUND. BE IT RESOLVED BY THE MAYOR AND COMMON COUNCIL OF THE CITY OF SAN BERNARDINO AS FOLLOWS: SECTION 1. Recitals. 7 A. The City of San Bernardino has for many years contracted 8 with the San Bernardino Economic Development Council, hereinafter 9 "SBEDC", to administer, among other programs, a small business 10 revolving loan fund, and has provided the sources of financing 11 for such revolving loan fund. 12 B. SBEDC now desires to be relieved of responsibilities for 13 small business development, and to restrict its activities to the 14 marketing of the City and of the industrial and commercial 15 opportunities offered by the City to prospective businesses. 16 C. City and SBEDC propose to enter into a contract 17 whereunder SBEDC will transfer and assign all outstanding loans 18 of its small business revolving loan fund to City. 19 D. City desires to create a small business revolving loan 20 fund, establish guidelines for such funds, and provide for the 21 administration of such loan fund by the Community Development 22 Department of the City. 23 SECTION 2. Implementation. 24 A. The City hereby establishes a small business revolving 25 loan fund, to be administered by the Community Development 26 Department of the City of San Bernardino. 27 B. Those certain "Guidelines for Small Business Revolving 28 Loan Fund" presented to the Mayor and Common Council, a copy of 12/1/86 1 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 which is annexed hereto as Exhibit "A", are hereby approved and adopted as the official guidelines for the small business revolving loan fund for the City of San Bernardino. C. The Community Development Department of the City of San Bernardino is hereby designated to administer the small business revolving loan fund, in accordance with the guidelines heretofore established, under the general direction of the City Administrator. All loans to be made from said small business revolving loan fund shall be approved in accordance with the guidelines approved hereby, and shall be implemented by the Director of the Community Development Department under the Direction of the City Administrator, with all documents to be utilized in such loan to be approved by the City Attorney's Office. D. The Director of the Community Development Department is authorized and directed to prepare recommendations for staffing and implementation of the small business revolving loan fund program, including recommendations for the funding thereof, consistent with the policy that the Comillunity Development Department shall be, to the greatest extent possible, self- sufficient and not rely upon general funds from the City of San Bernardino. A report and recommendations from the Director of the Community Development Department shall be submitted to the Mayor and Common Council within one month from the date of adoption of this resolution. I HEREBY CERTIFY that the foregoing resolution was duly adopted by the Mayor and Common Council of the City of San Bernardino at an adlourned reqular meeting thereof, held on the 2 12/1/86 1 2 3 4 5 6 7 8 9 10 11 of 7i,l , 1986, by the following vote, to day of December wit: Council Members Estrada, Reilly, Ouiel. AYES: Strickler Council Member Frazier NAYS: Council Members Hernandez, Marks ABSENT: ~~~~ /' City Clerk hereby approved this re~ day The foregoing resolution Dp..r.p..rnhp..r , 1986. 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Mayor of t e City of San B Approved as to form: /;1 j J /.. .;//) (/? ~/fj-~ Cr~y ~ torney" . 12/1/86 3 THE CITY OF SAN BERNARDINO COMMUNITY DEVELOPMENT DEPARTMENT ECONOMIC DEVELOPMENT PROGRAM "GUIDELINES" FOR SMALL BUSINESS REVOLVING LOAN FUND The Economic Development Program (EDP) is established to enhance economic activity, encourage the growth of small business and to promote the physical revitalization of City of San Bernardino as a whole, with particular emphasis in economically depressed areas. The major goal of this program is to improve the overall economic growth and availability of jobs, goods and services to All city residents. General Program Features 1. The maximum amount of EDP participation in a single project is $50,000, the minimum loan is $10,000. Loans for amounts less than $10,000 will be considered on a case by case basis for equipment purchases only. 2. The EDP will fund a loan for no more than thirty-five percent (35%) of the total project. 3. The minimum matching requirement of private financing to EDP injection is one dollar ($1.00) private financing for each one dollar ($1.00) of EDP financing. 4. The business concern (loan applicant) must have been in business for at least three (3) years, unless there is strong evidence of recent experience in the same or an allied business. 5. Loans for business start-ups will be considered on an exception basis, and only in conjunction with Small Business Administra- tion assistance for same. Economic Development Program assis- tance in most instances will be used to assist the client in meeting Small Business Administration Loan Equity requirements. 6. The interest rate is negotiable, but shall not be less than five-percent (5%). 7. The maximum loan term and repayment conditions shall be deter- mined on a case by case method, based upon the financial status of the borrower, i.e., cash flow analysis. In addition, the loan terms and conditions of a participating financial institu- tion may also be a basis for determining loan term and repayment conditions. 8. Matching funds must be placed in loan proceeds for disbursement. matching funds are provided by a (e.g., Bank), the matching funds institution. an escrow account with the EDP However, in cases where the private lending institution may be disbursed by that 9. Matching funds may consist of a bank loan, or any other funds from a non-CDBG subsidized source. 10. Economic Development Program resources shall not be allocated, divided or set aside for individual properties prior to loan submittals. Funding is on a first-come first served basis. 11. Applicants will be charged a loan processing fee equal to one percent (1%) of the amount of financial assistance requested. Who Mav Aoolv Applications will be accepted from small, minority and female-owned businesses to physically improve commercial property and commerce within the City limits. In certain rare cases, funding may be considered for economically viable businesses. These businesses may be sole Proprietorships, Partnerships or Corporations. Selection Criteria Loan proceeds are to be used for commercial rehabilitation, pre- servation and economic development activities which further the City's overall economic development strategy. Loan consideration shall be based on the following criteria: 1. Creation of jobs (low/moderate income). 2. Retention of jobs (low/moderate income). 3. Provision of increased goods and services in the City. 4. Retention of goods and services in the City. 5. Provision of physical improvements to eliminate blight. The desired ration of increased jobs to job for each SlO,OOO in loan proceeds. reviewed on a case by case method. Eliaible Activities loan proceeds is one (1) Each project will be Eligible activities as defined under Section 570.202(a) and (b) and 570.203 of the CDBG Regulations dated October 31, 1984, and as they may be amended by HUD include, but are not limited to, the follow- ing: 1. Interior and/or exterior rehabilitation, restoration of altera- tion of commercial properties. a) Leasehold Improvements b) Seismic Improvements c) Other Improvements 2. Purchase of equipment. -2- 3. Purchase of commercial property for expansion of an ongoing business. 4. Working capital, if secured by physical assets, e.g., real property or equipment. 5. Business expansion activities. 6. Refinancing of existing debt (non-construction).* *The Community Development Department must first determine that such activities are necessary or appropriate to carry out an economic development project under Section 570.203 Activities. The Community Development Department must first find that such financ- ing is necessary and appropriate to achieve the recipient's community development objectives. Collateral The collateral shall be identical to that required by the partici- pating lending institution, where said collateral is adequate to cover both loans, with the City willing to subordinate its rights to the lending institution when necessary. Additional collateral shall be required in cases where that held by the lending institu- tion is not adequate to cover the City's interest. Such collateral may be, but is not limited to, Trust Deeds, Equipment Liens, and personal guarantees provided by the principals of the business. In cases where a private lender is not participating in the project, collateral must be adequate to cover the EDP loan. Construction 1. All construction work must be performed under the guidelines of the Davis-Bacon Act, which requires that all construction employees are paid at least the prevailing wage for his/her job classification. 2. The City shall not be responsible for the quality of workmanship on construction activities or equipment purchases utilizing the proceeds of the EDP. The borrower is responsible for the selection of all contractors and vendors. However, the City will make periodic inspections to ensure that the contracted work has been performed and/or equipment has been delivered as specified. The Loan Committee The EDP Loan Fund Advisory Board reviews all loan proposals which have been recommended for funding by CDD staff. The committee is comprised of eight (8) members, as follows: 1. Director (or his/her designee) Community Development Department 2. Manager (or his/her designee) Wells Fargo Bank of San Bernardino (non-voting) -3- 3. Manager (or his/her designee) Bank of America, San Bernardino Branch 4. Manager (or his/her designee) Home Savings Bank of San Bernardino 5. Manager (or his/her designee) Fist Interstate Bank of San Bernardino 6. Manager (or his/her designee) Price Waterhouse of San Bernardino Certified Public Accountant 7. District Manager Golden State Insurance Company San Bernardino Office 8. Director, Institute for Training and Development San Bernardino Community College All loan applications must be approved by a majority vote of the committee in order to proceed to final processing. The loan committee shall meet a minimum of one (1) time per month. Dates to be determined by the Committee. file: edcproguideline -4- CITY OF SAN BERNARDINO COMMUNITY DEVELOPMENT DEPARTMENT BORROWER: PROJECT TITLE: PROJECT ADDRESS: LOAN IS NUMBER CONTRACTS. OF COMMUNITY DEVELOPMENT file: coverpageagmt KJH/lb Section Number Section I 101. 102. 103. 104. 105. Section II 201. 202. 203. 204. TABLE OF ~QN:r];N:r~ Title Paae PARTIES, TERM, CONDITIONS PRECEDENT AND INDEPENDENT STATUS Parties to the Agreement 2 2 Representatives of the Parties and Service of Notices Term of this Agreement 2 Conditions Precedent 3 Independent Contractor Status of the Borrower 3 PURPOSE OF AGREEMENT AND LOAN, LOAN TERMS, AND PROMISSORY NOTE Purpose of the Agreement Purpose of the Loan 3 4 4 4 Terms of the Loan Promissory Note Section III REPRESENTATIONS AND COVENANTS OF BORROWER, AND DEFAULT 301. 302. 303. Section IV 401. 402. 403. 404. Representations of the Borrower 5 Covenants of the Borrower 6 8 Default REPORTS, RECORDS AND AUDITS Reporting Requirements 10 10 Maintenance of Records Audits and Inspections Validity of Financial Documentation Submissions 10 11 i Section NUmber 405. 406. Section V SOL 502. 503. 504. 505. 506. 507. 508. 509. 510. 5ll. 512. 513. 514. 515. 516. 517. 518. 519. TABLE OF CONTENTS (Cont...) Title Paae Release of Funds from Escrow 11 Reconveyance Fee 11 GENERAL TERMS AND CONDITIONS Indemnification and Insurance Requirements 11 13 13 13 13 14 15 15 16 16 16 16 Plan Prohibition Against Assignment Limitation of Corporate Acts Amendments and Waivers Compliance with Statutes and Regulations Conflict of Interest Political Activity Prohibited Lobbying Prohibited Installation of Financial Assistance Sign Press Releases Discrimination Prohibited Nondiscrimination, Equal Employment Practices, and Affirmative Action Employment Opportunities for Business 16 and Lower Income Persons Participation of Minorities, Women and 18 Small Businesses Captions 18 Effect of Legal Judgment 18 Choice of Law Governing this Agreement 18 prohibition of Legal Proceedings 18 Rights and Remedies 18 ii Section Number Section VI 60l. 602. TABLE OF CONTENTS (Cont...) Title ENTIRE AGREEMENT Complete Agreement Number of Pages and Attachments Execution (Signature) Page ATTACHMENTS Attachment I -- Employment Action Plan Attachment II -- Insurance Requirements KJH/lb file: tablecontents iii paae 18 18 19 AGREEMENT NUMBER BETWEEN THE CITY OF SAN BEm~ARDINO AND THE RELATING TO THE PROJECT THIS AGREEMENT is made and entered into by and between the City of San Bernardino, a municipal corporation, hereinafter call "City", and hereinafter called the "Borrower". , RITN~~~~TH 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 HCDBG, to address the community development needs of the City; and WHEREAS, the Community Development Department, hereinafter called the "CDD", 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 CDD 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, the project which is the subject of this agreement meets the requirements of the above described program; 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: ~~E~~M~NT SECTION I. PARTIES. TERM. CONDITIONS PRECEDENT. AND INDEPENDENT STATUS SlOl. Parties to the Aqreement. 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, having its principal address at The Borrower is ( ) (fictitious name enterprise, individual, California Corporation/general partnership/limited partnership.) Sl02. Representatives of the Parties and Service 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 other- wise stated in the Agreement: Kenneth J. Henderson, Director Community Development Department 300 North "D" Street, Fifth Floor San Bernardino, CA 92418 2. The representative of the Borrower shall be: 3. 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 re- quested and shall be deemed communicated as of the date of mailing. 4. 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. Sl03. Term of This Aqreement. This Agreement shall remain in full force and effect from the date of execution by Borrower of the Promissory Note, _L until such time as said Promissory Note is paid according to its terms, subject to the provisions of S303 herein. Sl04. 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 512 herein. B. In the event that Borrower is a corporation, then prior to the execution of this Agreement, the Borrower shall provide the City with copies of the following documents: 1. Borrower's Articles of Incorporation, and all amendments thereto, as filed with the Secretary of State. 2. Borrower's By-Laws, and all amendments thereto, as adopted by the Borrower and properly attested. 3. Resolutions or other corporate actions of the Borrower's Board of Directors, properly attested or certified, which specify the name(s) of the person(s) authorized to obligate the Borrower and execute contractual documents. 4. Certificate of Good Standing from California Secretary of State. C. In the event that Borrower is a partnership, then prior to the execution of this Agreement, the Borrower shall provide the City with copies of the Borrower's Partnership Agree- ment, and evidence of filing thereof with appropriate filing official. D. In the event the Borrower is an individual doing business under fictitious name, a copy of the Fictitious Name State- ment and evidence of the proper filing thereof. 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 II. PURPOSE OF AGREEMENT AND LOAN, LOAN TERMS, A}ID PROMISSORY NOTE S201. Purpose of the Aqreement. The purpose of this Agreement is to provide Dollars ($ ) of EDP funds to be loaned by the City to the Borrower, hereinafter called the "Loan", for the purpose and under the terms and condi- tions set forth herein. -~ S202. Purpose of the Loan. The purpose of the Loan is to provide financial assistance to enable the Borrower to: S203. Terms of the Loan. A. The City agrees to lend the Borrower, and the Borrower agrees to borrow from the City, an amount not to exceed DOLLARS, ($ ) , such transaction hereinafter referred to as the "Loan". The Loan is to be evidenced by, and made against delivery of a Promissory Note executed by the Borrower, hereinafter called the "Note" and by this reference incorporated herein. B. The Note shall (a) be dated as of the closing, (b) bear interest on the unpaid principal at the rate of per annum, (c) be for a term of ( ) years, and (d) provide for payment of the principal amount thereof and the interest thereon in ( ) equal monthly installments of DOLLARS ($ ), each including principal and interest, and continuing until said principal and interest are paid in full. C. Each monthly installment shall be applied first to the payment of interest then accrued to the date the payment is received, and the balance, if any, to the reduction of the principal. 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 Closing with the same effect as though made at the Closing. 2. Receipt by the City from the Borrower of all executed documents in connection with this Agreement; satisfac- tory in form and substance to the City. 3. If matching funds constitute a part of this Agreement, then Borrower shall obtain matching funds in an amount equal to the amount of this loan and, as required by the City, deposit said matching funds into an account with Escrow Agency. 4. 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: C. Borrower shall have the right, without penalty, to prepay the Note together with the accrued interest thereon as of the date of such prepayment. D. The Borrower acknowledges and agrees that the amount being provided under this loan shall be for a total of DOLLARS, ($ ), and that no additional funds to cover additional projects costs, anticipated or unanticipated, incurred as a result of cost overruns or expenses in financing this project, are available under this Agreement. SECTION III. REPRESENTATIONS AND COVENANTS OF BORROWER. AND DEFAULT S301. Representations of the Borrower. To induce City to enter into this Agreement, Borrower covenants and represents to City that: 1. The execution, delivery and performance of the Note and this Agreement by Borrower have been duly authorized by Borrower. This 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 S302. 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 , San Bernardino, California, and it is free and clear from all liens except as set forth herein: 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 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. D. There is not pending or threatened against Borrower, or any of its officers, any actions, suits, proceedings or investi- gations at law or in equity or before or by any Federal, state, municipal or governmental department, commission, board, bureau, agency or instrumentality which, if deter- mined adversely, would be likely to have a materially adverse effect on the business or properties of Borrower. E. Each and every financial statement, document and record delivered by Borrower to the City in connection with 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 except changes in the ordinary course of which, individually or in the aggregate, adverse. , business, none of has been materially 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 according to its terms. 2. Pay any other amounts that may be due or become due and owing to the 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 desireable 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 se- curity interest in Real Property as collateral under S204B 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, with 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 defined and set forth in Section 505 of this Agreement. 9. In the event that Borrower is a corporation, then Borrower shall do or cause to be done all things neces- sary to preserve and keep in full force and effect its corporate existence, rights and franchises. 10. 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, pro- spects, profits or condition (financial or otherwise) of Borrower. 11. Submit an Annual Employment Report on or before the fifteenth (15th) day of June for the year(s) . The Annual Employment Report shall detail Borrower's compliance with the Employment Action _7_ Plan, Attachment I attached hereto and by this reference incorporated herein, for the preceding twelve (12) month period. 12. Maintain adequate insurance with respect to the col- lateral and the (proprietorship, partnership or cor- porate) 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 addition, said insurance coverage(s) shall be in accordance with the general insurance provisions of this Agreement as specified in S501B.5, including fire, hazard and general comprehensive liability insurance, worker's compensation, construction/rehabilitation liability, to protect such business 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. 13. Pay all indebteness and obligations promptly in accord- ance with normal terms and promptly pay and .discharge or cause to paid and discharged all taxes, assessments and governmental charges or levies imposed upon it or upon its income and profits or upon any of its property, real, personal or mixed, or upon any part thereof, respectively, before the same shall become in default. 5303. Default. A. 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 volun- tarily 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 of any order, rule or regulation or 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: 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 with any terms, conditions, or covenants as provided in this Agreement or in any instruments securing or related to this Agreement. 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 appli- cable 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 (GO) consecutive days. G. 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 subject 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. 8. Failure to submit the Annual Employment Report referred to in S302(12) within ninety (90) days of the scheduled due date for said Report. 9. 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. B. If Borrower shall at any time default in making any payment of principal or interest on the Note, Borrower shall to the full extent permitted by law, pay to the City or other holder of the Note, in addition to any other amounts that may be due from Borrower to such holder, an amount equal to the reasonable costs and expenses incurred by such holder, in its efforts to protect its collateral, secure payment, or otherwise defend its interests hereunder in any judicial or administrative proceeding. SECTION IV. REPORTS. RECORDS AND AUDITS S401. ReportinG Requirements. A. At such times and in such forms as the City may require, there shall be furnished to the City such statements, records, reports, data and information as the City may request pertaining to matters covered by this Agreement. B. Borrower will provide its financial and accounting statements to the City for the period ending and annually thereafter during term of this Agreement, but not later than three (3) months following the expiration of any such period, and at each other time and in such form as the City may prescribe. S402. Maintenance of Records. A. Records, in their original form, shall be maintained in accordance with the requirements prescribed by the Grantor and the City with respect to all matters covered by this Agreement. Such records shall be retained for a period of six (6) years after termination of this Agreement and after all other pending matters are closed. "Pending Matters" in- clude, but are not limited to, an audit, litigation, or other actions involving records. The City may, at its discretion, take possession of and retain said records. B. 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. S403. Audits and Inspections. A. 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 ,n transcripts from records, including all contracts, invoices, materials, payrolls, records of personnel, conditions of employment and other data relating to all matters covered by this Agreement. B. The City shall have the authority to make physical inspec- tions 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 soley responsible for the provision of security and for the safe guarding of the business and its property. S404. 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. S405. Release of Funds from Escrow. A. 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. B. 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. S406. Reconvevance 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 expense. SECTION V. GENERAL TERMS AND CONDITIONS S501. 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 either party hereto or third persons in any manner arising by reason of or incident to the performance of this Agreement on the part of the Borrower or sub-borrower of any tier 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. City 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. Alternatively, 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 Additional 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 pre- viously submitted and approved by the City. (Certifica- tion of insurance shall be procured, filed and approved in strict compliance with City rules and regulations.) 3. With respect to the interests of the City, such in- surance shall not be cancelled, 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 "D" Street, San Bernardino, CA 92418. Policies of insurance and fidelity bonds, except for policies covering Worker's Compensation and Employees' 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 interests, in which event the cost thereof shall be reimbursed by Borrower forthwith. Any failure to forthwith reimburse such expense shall constitute an Event of 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. S502. Prohibition Aqainst Assiqnment. A. The Borrower shall not assign this Agreement, nor assign or transfer any interest or obligation in this Agreement (whe- ther 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. B. 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. 5503. Limitation of Corporate Acts. In the event that Borrower is a corporation then the Borrower shall not amend its Articles of Incorporation or Bylaws, move to dissolve, transfer any assets derived from funds provided under this Agreement, or take any other steps which may materially affect its operations within the performance of this Agreement without first notifying the City in writing. The Borrower shall notify the City immediately in writing of any change in the Borrower's corporate name. S504. 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. S505. Compliance with Statutes and Requlations. A. 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 1 ~ with new, amended, or revised laws, regulations, and/or procedures that apply to the performance of this Agreement, upon being provided notice thereof. 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 con- struction contracts awarded by the Borrower pursuant to this Agreement and all sub-contracts thereto. S506. Conflict of Interest. A. The Borrower covenants that none of its directors, officers, employees, or agents shall participate in selecting sub- contractors, 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 sub- contract; 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. 2. The term "financial or other interest" includes, but is not limited to: 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 interests 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 -14- governing body of a non-profit 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 sub agreement, (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. 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 of their immediate family with the proposed subcontractor and 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 Bernar- dino, State of California, and Federal regulation regarding conflict of interest. G. The Borrower warrants that is has not paid or given and will not payor give to any third person any money or other consideration for obtaining this Agreement. H. 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 of officer or for one (1) year thereafter. I. 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". S507. 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. S508. 1obby1n9_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. -15- S509. 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 recelvlng financial assistance from the City, if such a sign is requested by the Director of Community Development Depart- ment. S510. 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. 5511. 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 subjected 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 there- in. 5512. Nondiscrimination. Equal Employment Practices and Affirma- tive 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 City. In performing this Agreement, the Borrower shall not dis- criminate 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 subject to the provisions of this paragraph. 5513. Emplovment Opportunities for Business and_1Q~gS Income Persons. Any project/program funded in part or in whole with Com- munity 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 -16- Development Act of 1968, as amended, 12 USC 1701u. 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 regula- tions issued pursuant thereto by the Secretary of Housing and Urban Development set forth in Title 24 CFR, Part 135, and all applicable rules and orders of the Department 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 has a collective bargaining agreement or other contract or understanding, if any, a notice advising the said labor organization or worker's representative of its commitments under this Section 3 clause and shall post copies of the notice in conspicuos 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 is 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. Compliance with the provisions of Section 3, the regu- lations set forth 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 finan- cial 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, its successors and assigns to those sanctions specified by the grant or loan agreement or contract through which Federal assis- tance is provided, and to such sanctions as are spec- ified by Title 24 CFR, Part 135. -17- S514. Participation of Minorities. Women and Small Businesses. To the fullest extent possible in the administration of this Agreement, Borrower agrees to provide opportunities for minorities, women and small businesses to participate in procurements under this Agreement. S515. 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. S516. Effect of Leqal Judqment. Should any covenant, condition or prov~s~on 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 the covenant, condition or provision herein contained. S517. Choice OCJ,9~L.Governina this Aq reement. This Agreement shall be governed by and construed in accor- dance with the laws of the State of California. . S518. Prohibition of Leqal Proceedinqs. 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 City or its official representative. S519. Riqhts 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 IV ~NTIRE AGREEMENT. S601. Complete Aqreement. This Agreement contains the full and complete Agreement between the two parties. No verbal agreement or conversa- tion with any officer or employee of either party shall effect or modify any of the terms and conditions of this Agreement. S602. N~~ber of Pages and Attachments. -18- This Agreement is executed in three (3) duplicate originals, each of which is deemed to be an original. This Agreement includes, (___) pages and ( ) attachments which constitute the entire understanding and agreement of the parties. IN WITNESS WHEREOF, the City Borrower have caused this Agreement authorized representatives on this , 19 of San Bernardino and thee to be executed by their duly day of DIRECTOR OF THE COMMUNITY DEVELOPMENT DEPARTMENT BY Kenneth J. Henderson (CORPORATION) BY Corporate President ATTEST: BY - Corporate Secretary Approved as to form: BY City Attorney KJH/LB file: edaagreementpg -19- 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 per- sons. 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 deter- mine 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. KJH/lb file: attachiedpagmt Economic Development Program ATTACHMENT II INSURANCE REQUIREMENTS (Instructions for completing, executing and submitting Evidence of Insurance to the City of San Bernardino.) Insured: (Contractor, Lessee, Permittee, Borrower, Etc.) Agreement/Reference No. 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. If 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 10 below.) B. INSURANCE AGENT OR BROKER 1. Acceptable Evidence -- The appropriate City Special Endorse- ments are the preferred form of evidence. No modifications to the form are permitted. 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. 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 ini- tialed 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 percent participa- tion. 5. Document Reference -- Include reference to either the specific City agreement (bid, contract, lease, etc.) or indicate that all such agreements are covered. Insurance Requirements: 6. Coverage and Limits -- The coverages and limits 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. 7. Excess Insurance -- Endorsements to excess policies will be required when primary insurance is insufficient to comply with the requirements. 8. 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. 9. Person to Contact -- Completed endorsements, correspondence and questions relating to the required insurance are to be directed to the following representatives: 10. Technical Assistance -- Improperly completed endorsements will be returned to your insured for correction. 11. Delay in submitting properly completed endorsement forms may delay your insured's intended occupancy or operation. 12. 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. -2- INSURANCE REQUIREMENTS (Attachment II) N~E AGREEMENT/REFERENCE NUMBER DATE The following coverages noted with an .x. are required with the Combined Single Limits (CSL) as noted on the right. Limits Worker's Compensation Employers Liability ( ) Broad Form All States Endorsement ( ) Voluntary Compensation Endorsement ( ) Longshoremen's and Harbor Workers' Compensation Act Endorsement Statutory $ 100.000 General Liability ( ) Premises and Operations ( ) Contractual Liability ( ) Independent Contractors ( ) Products/Completed Operations ( ) Broad Form Property Damage ( ) Personal Injury ( ) Broad Form Liability Endorsement ( ) Fire Legal Liability ( ) Watercraft Liability ( ) Incidental Medical Malpractice (if applicable) ( ) Explosion Hazard ( ) Collapse Hazard ( ) Underground Hazard ( ) Garagekeepers Legal Liability ( ) Hangar Keeps Legal Liability ( ) Owned Automobiles ( ) Nonowned Automobiles ( ) Hired Automobiles ( ) $1.000.000 Automobile Liability (if auto is used for this contract.) $1.000.000 Professional Liability (if applicable) $ 500.000 Property Insurance 90% value of buildina ( ) Extended Coverage ( ) Vandalims and Malicious Mischief ( ) Flood ( ) Earthquake $ ( ) Debris Removal ( ) Sprinkler Leakage -3- ) Windstorm ) Other Aircraft Liability (bodily injury and property damage.) ( ) Passenger Liability (per seat) $ Ocean Marine Ocean Marine Liability ( ) Protection and Indemnity ( ) Running Down Clause ( ) Pollution ( ) Jones Act ( ) Wharfingers Liability ( ) Cargo ( ) Inchmaree Clause ( ) Charter's Legal Liability ( ) Fire Legal Liability Fidelity Bond KJH/ lb file: attchiiedpagmt -4- $ $ $ 90% of cost of reolace- ment. $ 25.000 minimum