HomeMy WebLinkAbout2009-307
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Note: Companion Resolutions
2009-306,2009-307, CDC/2009-45,
CDC/2009-46, CDCI2009-47,
CDC/2009-48 and CDC/2009-49
RESOLUTION NO. 2009-307
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RESOLUTION OF THE MAYOR AND COMMON COUNCIL OF THE CITY OF
3 SAN BERNARDINO AUTHORIZING THE EXECUTION OF AN INTERIM
LOAN AGREEMENT AND THE ISSUANCE OF A REVENUE ANTICIPATION
4 NOTE IN THE AMOUNT OF ONE MILLION THREE HUNDRED TEN
THOUSAND DOLLARS ($1,310,000) TO THE REDEVELOPMENT AGENCY OF
5 THE CITY OF SAN BERNARDINO
6
WHEREAS, the City of San Bernardino. California (the "City"), is a municipal corporation
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and a charter city duly created and existing pursuant to the Constitution and laws of the State of
California; and
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WHEREAS, the Community Redevelopment Agency of the City of San Bernardino (the
11 "Agency"), is a redevelopment agency, a public body, corporate and politic of the State of
12 California, organized and existing pursuant to the Community Redevelopment Law, Part 1 of
I3 Division 24 commencing with Section 33000 of the Health and Safety Code of the State of
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California (the "Act"); and
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WHEREAS, City has requested a short-term loan from the Agency for the 2009-2010 fiscal
17 year in a proposed amount not to exceed one million three hundred ten thousand dollars
18 ($1.310,000); and
19 WHEREAS, pursuant to California Government Code Section 53851, on and after the first
20 day of any fiscal year a local agency may borrow money pursuant to this article (Article 7.6 of
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Division 2 of Title 5 of the California Government Code commencing with section 53850), the
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indebtedness to be represented by a note or notes issued to the lender pursuant to the article. And,
further, the money borrowed may be used and expended by the local agency for any purpose for
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25 which the local agency is authorized to use and expend moneys; and
26 WHEREAS, the note or notes described above shall be issued pursuant to a resolution
27 authorizing the issuance thereof adopted by the legislative body of the local agency; and
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after the date of issue. issued in anticipation of uncollected taxes, income revenue, cash receipts, and
Agency in the form as attached hereto as Exhibit "A" and by this reference made a part
hereof, and authorizes the City Manager to execute and deliver such Loan Agreement on
behalf of the City in the principal amount of one million three hundred and ten thousand
dollars ($ I ,31 0,000).
2. The Mayor and Common Council hereby approves the Revenue Anticipation Note with
the Agency in the form as attached hereto as Exhibit "B" and by this reference made a
part hereof, and authorizes the City Manager to execute and deliver such Revenue
Anticipation Note on behalf of the City in the principal amount of one million three
hundred and ten thousand dollars ($ J ,31 0,000) ("Loan Proceeds"). The City Manager is
further authorized to submit draw requests for the Loan Proceeds, or part thereof, to the
Agency as needed to satisfy the cash flow requirements of the City.
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2009-307
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RESOLUTION OF THE MAYOR AND COMMON COUNCIL OF THE CITY OF
SAN BERNARDINO AUTHORIZING THE EXECUTION OF AN INTERIM LOAN
AGREEMENT AND THE ISSUANCE OF A REVENUE ANTICIPATION NOTE IN
THE AMOUNT OF ONE MILLION THREE HUNDRED TEN THOUSAND
DOLLARS ($1,310,000) TO THE REDEVELOPMENT AGENCY OF THE CITY OF
SAN BERNARDINO
I HEREBY CERTIFY that the foregoing Resolution was duly adopted by the Mayor and
6 ommon Council of the City of San Bernardino at a ;oint re~ular
meeting thereof, held
7 n the 17th day of August
,2009, by the following vote, to wit:
8 OUNCIL MEMBERS: A YES
9 STRADA
10
II
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I3
14
IS
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NAYS
ABSTAIN ABSENT
~
x
x
x
x
x
CCAMMACK
~
CZ---J....u /;;. CL"'L--~
CITY CLERK
The foregoing Resolution is hereby approved thisc;(l.r day of August
,2009.
0-"4" .
J. MORR , ayor
n Bernardino
pproved as to form:
25 AMES F. PENMAN,
ity Attorney
26 cf
27 y: </l0--'- ?-- f ~.-.....
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EXHIBIT "A"
2009-307
CDC/2009-47
EXHIBIT "A"
INTERIM LOAN AGREEMENT
THIS INTERIM LOAN AGREEMENT (this "Agreement") is entered into as of this
17th day of August, 2009, by and between the City of San Bernardino, a charter city, organized
under the Constitution and laws of the State of California (the "Borrower" or the "City"), and
the Redevelopment Agency of the City of San Bernardino, a public body, corporate and politic
(the "Lender" or the "Agency"). In this Agreement, any reference to a "Party" shall mean
either the Borrower or the Lender and any reference to the "Parties" shall collectively mean
both the Borrower and the Lender.
RECITALS
WHEREAS, the Borrower desires to borrow funds from the Lender in accordance with
and pursuant to this Agreement and the Revenue Anticipation Note (as defined below); and
WHEREAS, the Borrower is of the reasonable understanding that adequate financial
resources will be made available to repay the financial obligations incurred by the Borrower
pursuant to this Agreement within the current fiscal year of the Borrower, and the Borrower does
not intend to seek to have the financial obligations of this Agreement and the Revenue
Anticipation Note forgiven or otherwise compromised to the financial detriment of the Lender;
and
WHEREAS, the Parties intend that this Agreement and the Revenue Anticipation Note be
deemed for all purposes to be a legally enforceable contractual obligation between the Parties in
full compliance with the City Charter and all other applicable provisions of California law with
respect to the City and the limitations on the incurring of long-term debt obligations and in full
compliance with all requirements of the Community Redevelopment Law ("CRL") with respect
to the Agency for the use and investment of tax increment revenues of the Agency pending the
final disposition or ultimate use of such assets of the Agency in furtherance of its redevelopment
purposes and in compliance with the CRL; and
I
WHEREAS, the Lender desires to make one (1) or more principal advances to the
Borrower in accordance with and pursuant to this Agreement and the Revenue Anticipation
Note.
NOW, THEREFORE, in consideration of the above recitals of this Agreement, and for
such other good and valuable consideration the receipt and sufficiency of which are hereby
acknowledged, the Parties hereto agree as follows:
1. The Loan.
The Lender shall loan to the Borrower a principal amount not to exceed One
Million Three Hundred Ten Thousand Dollars ($1,310,000), in the aggregate (the "Loan"), as
evidenced by the Revenue Anticipation Note, dated concurrently herewith, as executed by the
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Borrower in favor of the Lender (the "Revenue Anticipation Note" or the "Note"). The Lender
shall make one (I) or more advances of principal to the Borrower in the principal amount not to
exceed One Million Three Hundred Ten Thousand Dollars ($1,310,000), in the aggregate,
subject to the terms, covenants and conditions of the Revenue Anticipation Note and this
Agreement. The Loan is not a revolving loan, and any amount of the Loan repaid by the
Borrower to the Lender may not be re-borrowed by the Borrower. Upon three (3) business days'
prior written notice from the Borrower to the Lender, the Lender shall disburse to the Borrower
the requested advance under the Revenue Anticipation Note. The Revenue Anticipation Note is
attached hereto and incorporated herein by this reference as Exhibit "A."
2. Interest.
Interest shall accrue and compound daily at the per annum interest rate of 1.75%
(the "Interest Rate") on the unpaid principal balance of each Loan advance made by the Lender
to the Borrower commencing on the date of each disbursement of a Loan advance by the Lender
to the Borrower until paid in full by the Borrower to the Lender, in accordance with and subject
to the terms, covenants and conditions of the Revenue Anticipation Note and this Agreement.
Interest shall be calculated on the actual number of days in a year equal to either 365 or 366 days
and such calculation of interest shall be compounded on a daily basis while any amount of the
Indebtedness remains unpaid and outstanding. In the Event of a Default (as defined in Section 7
of this Agreement), interest shall accrue at the Default Interest Rate (as defined in Section 4 of
this Agreement) on the Indebtedness (as defined in Section 4 of this Agreement) from the
Maturity Date (as defined in Section 4 of this Agreement) until paid in full by the Borrower to
the Lender.
3. Preoayment.
The unpaid principal amount under the Revenue Anticipation Note may be
prepaid by the Borrower to the Lender, at any time, in whole or in part, without premium or
penalty, prior to the Maturity Date together with accrued and unpaid interest to the date of any
such prepayment.
4. Reoayment of the Loan Princioal and Interest.
No periodic payments of either (i) principal and interest, or (ii) interest-only, are
due and payable by the Borrower to the Lender during the term of the Revenue Anticipation
Note. On June 30, 2010 (the "Maturity Date"), the Borrower shall pay to the Lender the unpaid
principal amount advanced by the Lender to the Borrower under the Revenue Anticipation Note,
and all accrued and unpaid interest at the Interest Rate accruing from the date of the Revenue
Anticipation Note on the unpaid principal amount advanced by the Lender to the Borrower under
the Revenue Anticipation Note, and any other amounts due under the Revenue Anticipation Note
and this Agreement, including, without limitation, attorneys' fees and court costs (collectively,
the "Indebtedness"). If the Borrower fails to pay the Indebtedness to the Lender on the Maturity
Date, the Borrower shall pay to the Lender, on written demand from the Lender, a late charge in
the amount of three percent (3%) of the unpaid principal amount of the Loan. Further, without
notice or demand from the Lender to the Borrower, interest shall accrue on the Indebtedness at
the rate of the Interest Rate plus two (2) percentage points (i.e., two hundred (200) basis points)
2
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(the "Default Interest Rate") from the Maturity Date until the Indebtedness is paid by the
Borrower to the Lender in full, should the Borrower fail or refuse to pay to the Lender the
Indebtedness due on the Maturity Date. The Lender shall charge the Borrower no origination
points or loan fees in connection with the making of the Loan by the Lender to the Borrower.
5. No Securitv; Borrower Payment Covenant.
The Loan is not secured by the pledge of, the assignment of, or the granting of
any security interest in, the assets, funds, revenues or properties of the Borrower but this Loan
shall be a general obligation of the City in accordance with Government Code Section 53857.
Further, the obligations of the Borrower under the Revenue Anticipation Note and under this
Agreement are not guaranteed by any entity or individual. The Borrower hereby agrees and
covenants to appropriate funds to permit the Borrower to pay to the Lender the Indebtedness on or
before the Maturity Date.
6. Representations. Warranties and Covenants of Borrower.
The Borrower represents, warrants and covenants to the Lender, as follows:
(a) The Borrower is a charter city, has been duly organized under the laws and
Constitution of the State of California and has the power and authority to enter into this
Agreement and to incur the obligations under the Revenue Anticipation Note.
(b) The execution of this Agreement and of the Revenue Anticipation Note
has been duly authorized by the Mayor and Common Council of the City of San Bernardino as
the legislative body of the Borrower and such execution does not require the approval or consent
of any other governmental entity.
(c) No governmental or regulatory approvals that have not been previously
obtained by the Borrower are required for the due approval, execution and delivery by the
Borrower of this Agreement and ,of the Revenue Anticipation Note.
,
(d) This Agreement and the Revenue Anticipation Note have been, and will
be, duly executed and delivered by the Borrower and this Agreement and the Revenue
Anticipation Note do, and will, constitute valid and binding obligations of the Borrower, payable
from the revenues, funds and assets, generally, of the Borrower as set forth herein and in the
Revenue Anticipation Note.
(e) The Borrower shall deliver to the Lender, within thirty (30) calendar days
after receipt by the Borrower of written request from the Lender, audit statements and budgets,
financial statements and/or such any other information, studies and reports (singularly and
collectively, the "Reports") requested by the Lender, as prepared by the Borrower at its sole cost
and expense, which Reports shall be reasonably acceptable to the Lender.
(f) The representations, warranties and covenants of the Borrower contained
in this Agreement and in the Recitals hereof shall be true and correct in all material respects on
and as of the date that the Lender disburses each Loan advance under the Revenue Anticipation
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Note and under this Agreement (the "Funding Date"), with the same force and effect as though
such representations, warranties and covenants had been made on and as of each such Funding
Date.
(g) On and as of each Funding Date, the Borrower shall not be in default
under the Revenue Anticipation Note or under this Agreement. The Borrower shall not, to the
best of the Borrower's knowledge, contravene any provision of federal, state, municipal or local
law, statute, rule or regulation, as amended from time to time, and the Borrower shall not conflict
or be inconsistent with or result in any breach of any terms, covenants or provisions of, or
constitute a default under, or result in the creation or imposition of a lien pursuant to the terms of
any loan agreement, credit agreement or any other agreement, contract or instrument to which
the Borrower is a party or by which the Borrower is bound or to which the Borrower may be
subject.
7. Events of Default.
(a) Bv Lender. The following shall constitute an event of default by the
Lender: (i) the failure by the Lender to fund the Loan in accordance with the Revenue
Anticipation Note and this Agreement within thirty (30) calendar days after the written request
by the Borrower to the Lender, provided the Borrower is not in default under the Revenue
Anticipation Note or this AgreeiU~nt.
(b) Bv Borrower. The failure by the Borrower to pay to the Lender the
Indebtedness on or before the Maturity Date shall constitute an event of default by the Borrower.
8. Remedies.
Upon a default by the Lender, the Borrower may seek appropriate legal,
injunctive or equitable relief to enforce the obligations of the Lender under this Agreement.
Upon a default by the Borrower, the Lender may institute any proceeding at law or in equity to
enforce the obligations of the Borrower under the Revenue Anticipation Note and/or under this
Agreement. In any action brought under this Agreement, the prevailing Party sh~ll be entitled to
reimbursement from the other Party of its costs and expenses (including, without limitation,
reasonable attorneys' fees and court costs) in bringing such action. Reasonable attorneys' fees
shall include, without limitation, the costs, salary and expenses of the City Attorney for the City,
and members of his office in enforcing this Agreement and/or the Revenue Anticipation Note.
9. Assignment.
The Lender shall be entitled to, and may assign this Agreement and the Revenue
Anticipation Note and the Lender's right to receive the Indebtedness under the Revenue
Anticipation Note and under this Agreement to any other entity or individual, without obtaining
the prior consent from the Borrower. The Borrower shall not delegate its obligations under this
Agreement and/or under the Revenue Anticipation Note, without the prior written consent of the
Lender, which written consent may be given or withheld in the sole and absolute discretion of
the Lender.
'.
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10. Term.
This Agreement shall terminate upon the payment in full by the Borrower to the
Lender of the Indebtedness.
I I. Notices.
Notices shall be presented in person or by certified or registered United States
mail, return receipt requested, postage prepaid, or by overnight delivery made by a nationally
recognized delivery service to the addresses noted below. Notice presented by United States
mail shall be deemed effective the second business day after deposit with the United States
Postal Service. This Section shall not prevent giving notice by personal service or telephonically
verified fax transmission, which shall be deemed effective upon actual receipt of such personal
service or telephonic verification. Either Party may change their address for receipt of written
notice by so notifying the other Party in writing.
To Lender:
Redevelopment Agency of the City of San Bernardino
201 North "E" Street, Suite 30 I
San Bernardino, California 92401
Attention: Emil A. Marzullo, Interim Executive Director
Phone: (909) 663- 1044
Fax: (909) 888-9413
To Borrower:
I".
City of San Bernardino
City Hall
300 North "D" Street, Sixth Floor
San Bernardino, California 92418
Attention: Charles McNeely, City Manager
Phone: (909) 384-5122
Fax: (909) 5138
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12. Governing Law; Jurisdiction.
This Agreement shall be governed by the laws of the State of California, and in
the event either Party seeks judicial relief or seeks to enforce or to interpret any provision of this
Agreement and/or the Revenue Anticipation Note, such actions shall be filed in the Superior
Court of San Bernardino County, State of California, Main Branch, in the City of San
Bernardino, California.
13. Entire Agreement.
This Agreement and the Revenue Anticipation Note constitute the entire
agreement between the Parties and may not be amended without the prior written consent of the
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Parties hereto. This Agreement and the Revenue Anticipation Note supersede all prior
negotiations, discussions and previous agreements between the Parties concerning the subject
matter herein and therein. The Parties intend this Agreement and the Revenue Anticipation Note
to be the final expression of their agreement with respect to the terms herein and a complete and
exclusive statement of such ternlS. No modification, amendment or waiver of any term herein
shall be binding unless executed in writing by the Parties hereto.
14. Amendment.
This Agreement and the Revenue Anticipation Note may be amended and the
times for performance hereunder and pursuant to the Revenue Anticipation Note may be
extended as deemed necessary by written instruments duly approved and executed by the Parties
hereto and thereto and approved by the respective governing bodies of the Parties. Any such
amendments or modifications shall be valid, binding and legally enforceable only if in written
form and executed by the Parties hereto after the same have been duly approved and authorized
for execution.
15. Severabilitv.
Each and every section of this Agreement shall be construed as a separate and
independent covenant and agreement. If any term or provision of this Agreement or the
application thereof shall be declared invalid or unenforceable, the remainder of this Agreement,
or the application of such term or provision to circumstances other than those to which it is
invalid or unenforceable, shall not be affected thereby, and each term and provision of this
Agreement shall be valid and enforceable to the extent permitted by law.
16. No Waiver bv the Lender. No waiver of any breach, default or failure of
condition under the terms of the Revenue Anticipation Note or under this Agreement shall be
thereby implied from any failure of the Lender to take, or any delay by the Lender in taking
action with respect to such breach, default or failure or from any previous waiver of any similar
or related breach, default or failure; and a waiver of any term of the Revenue Anticipation Note
or this Agreement must be made in writing and shall be limited to the express ~ritten terms of
such waiver. Borrower waives presentment, protest and demand, notice of protest, demand and
dishonor, and any and all other notices or matters of a like nature.
17. Successors and Assigns. The promises and agreements herein contained shall
bind and inure to the benefit of, as applicable, the respective administrators, successors and
assigns of the Parties.
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IN WITNESS WHEREOF, the Parties hereto have executed this Agreement on the date
first written above.
LENDER
Redevelopment Agency of the
City of San Bernardino,
a public bOdcorate
By:
Emil A. Marzullo, nterim Executive Director
Approved as to Form and Legal Content:
~~
J!i. ency Couns
BORROWER
City of San Bernardino,
a charter c ty
By:
(SEAL)
ATTEST:
Bl2~^-.J. k. ~
'city Clerk
Approved As To Form:
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EXHIBIT "A"
REVENUE ANTICIPATION NOTE
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REVENUE ANTICIPATION NOTE
$1,310,000
August 17,2009
FOR VALUE RECEIVED, the undersigned, the City of San Bernardino, a charter city
organized under the laws of the State of California (the "Borrower" or the "City"), hereby promises
to pay to the Redevelopment Agency of the City of San Bernardino, a public body, corporate and
politic (the "Lender" or the "Agency"), or to order, at the following address 201 North "E" Street,
Suite 301, San Bernardino, California 92401, or at such other place as the Lender, may from time to
time designate by written notice to the Borrower, in lawful money of the United States, the principal
sum of One Million Three Hundred Ten Thousand Dollars ($1,310,000), or such lesser amount of
advances as shall be made by the Lender to the Borrower, with interest in accordance with this
Revenue Anticipation Note on the unpaid principal balance from the date of this Revenue
Anticipation Note, and all other amounts due under this Revenue Anticipation Note, until paid in full
by the Borrower to the Lender. The obligation of the Borrower with respect to this Note is also
governed by the interim loan agreement, as executed by and between the Borrower and the Lender
concurrently herewith (the "Interim Loan Agreement").
1. Principal Advances. This Revenue Anticipation Note (this "Note" or this "Revenue
Anticipation Note") evidences the obligation of the Borrower to the Lender for the
repayment ofthe loan (the "Loan") made by the Borrower to the Lender under this Revenue
Anticipation Note and under the Interim Loan Agreement. The Lender may make one (I) or
more advances of principal to the Borrower in the principal amount not to exceed One
Million Three Hundred Ten Thousand Dollars ($ 1,3 I 0,000), in the aggregate, subject to the
terms, covenants and conditions of this Revenue Anticipation Note and the Interim Loan
Agreement. The Loan is not a revolving loan, and any amount of the Loan repaid by the
Borrower to the Lender may not be re-borrowed by the Borrower. Upon three (3) business
days' prior written notice from the Borrower to the Lender, the Lender shall disburse to the
Borrower the requested advance under this Revenue Anticipation Note.
i
2. Interest. Interest shall accrue and compound daily at the per annum interest rate of 1.75%
(the "Interest Rate") on the unpaid principal balance of each Loan advance made by the
Lender to the Borrower commencing on the date of each disbursement of a Loan advance by
the Lender to the Borrower until paid in full by the Borrower to the Lender, in accordance
with and subject to the terms, covenants and conditions of this Revenue Anticipation Note
and the Interim Loan Agreement. In the Event of a Default (as defined in Section 5) under
this Revenue Anticipation Note, interest shall accrue at the Default Interest Rate (as defined
in Section 4) on the Indebtedness (as defined in Section 4) from the Maturity Date until paid
in full by the Borrower to the Lender.
3. Prepayment. The unpaid principal amount under this Revenue Anticipation Note may be
prepaid by the Borrower to the Lender, at any time, in whole or in part, without premium or
penalty, prior to the Maturity Date.
4. Renavment of Loan Principal and Intercst. No periodic payments of either (i) principal
and interest, or (ii) interest-only, are due and payable by the Borrower to the Lender during
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the term of this Revenue Anticipation Note. On June 30, 2010 (the "Maturity Date"), the
Borrower shall pay to the Lender the unpaid principal amount advanced by the Lender to the
Borrower under this Revcnue Anticipation Note; and all accrued and unpaid interest at the
Interest Rate accruing from the date of this Revenue Anticipation Note on the unpaid
principal amount advanced by the Lender to the Borrower under this Revenue Anticipation
Note, and any other amounts due under this Revenue Anticipation Note and the Interim Loan
Agreement, including, without limitation attorneys' fees and court costs (collectively, the
"Indebtedness"). If the Borrower fails to pay the Indebtedness to the Lender on the Maturity
Date, the Borrower shall pay to the Lender, on written demand from the Lender, a late charge
in the amount of three percent (3%) of the unpaid principal amount of the Loan. Further,
without notice or demand from the Lender to the Borrower, interest shall accrue on the
Indebtedness at the rate of the Interest Rate plus two (2) percentage points (i.e., two hundred
(200) basis points) (the "Default Interest Rate") from the Maturity Date until the
Indebtedness is paid by the Borrower to the Lender in full, should the Borrower fail or refuse
to pay to the Lender the Indebtedness due on the Maturity Date.
5. Acceleration ofPavrncnt. The Indebtedness of this Loan shall become immediately due
and payable by the Borrower to the Lender, at the option of the holder and without demand
or notice from the Lender to the Borrower, should the Borrower fail to pay any amount due
and payable under this Revenue Anticipation Note or under the Interim Loan Agreement
(and "Event of Default"). Upon the occurrence of an Event of Default, the Lender shall be
permitted to exercise and enforce all rights and remedies available to the Lender, under this
Revenue Anticipation Note, under this Interim Loan Agreement, at law or in equity.
6. Alllllication ofPavrncnts. All payments received on account of this Revcnue Anticipation
Note shall first be applied to all attorneys' fees, court costs and all other costs due under this
Revenue Anticipation Note and under the Interim Loan Agreement, then to all accrued and
unpaid interest due under this Revenue Anticipation Note, and then to the reduction of the
unpaid principal amount.
7. Attornevs' Fees. The Borrower hereby agrees to pay all costs and expenses, including
reasonable attorneys' fees, which may be incurred by the Lender in the enfo\-cement of this
Revenue Anticipation Note. For purposes of this Revenue Anticipation Note, attorneys' fees
shall include, without limitation, the costs, salary and expenses of the City Attorney for the
City, and members of his office in enforcing this Revenue Anticipation Note.
8. Notices. Except as may be otherwise specified herein, any approval, notice, direction,
consent, request or other action by the Lender shall be in writing and must be communicated
to the Borrower at 300 North "D" Street, City Hall, Sixth Floor, San Bernardino, State of
California, to the attention of the City Manager, or at such other place or places as the
Borrower shall designate to the Lender in writing, from time to time, for the receipt of
communications from the Lender. Mailed notices shall be deemed delivered and received
five (5) working days after deposit in the United States mails in accordance with this
provision.
9. Governinc: Law. This Revenue Anticipation Note shall be construed in accordance with and
be governed by the laws of the State of California.
P\AgendulAgenda ^naehmcnu\Agenda Al1achmenls\Agenda ^n8chmenls\Agrmls-Amend 2009\08-17-09 EVA Budge! FY 09-10 Revenue Anticipation Note doc
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2009-307
CDC/2009-47
10. Severabilitv. Ifanyprovision of this Revenue Anticipation Note shall be invalid, illegal or
unenforceable, the validity, legality and enforceability of the remaining provisions hereof
shall not in any way be affected or impaired thereby.
I I. No Waiver bv the Lender. No waiver of any breach, default or failure of condition under
the terms of this Revenue Anticipation Note or under the Interim Loan Agreement shall be
thereby be implied from any failure of the Lender to take, or any delay by the Lender in
taking action with respect to such breach, default or failure or from any previous waiver of
any similar or related breach, default or failure; and a waiver of any term of this Revenue
Anticipation Note or the Interim Loan Agreement must be made in writing and shall be
limited to the express written terms of such waiver. Borrower waives presentment, protest
and demand, notice of protest, demand and dishonor; and any and all other notices or matters
of a like nature.
12. Usurv. All agreements bctween the Borrower and the Lender arc cxprcssly limited, so that
in no event or contingency, whether because of the advancement of the proceeds of this
Revenue Anticipation Note, acceleration of maturity of the unpaid principal balance, or
otherwise, shall the amount paid or agreed to be paid to the Lender for the use, forbearance,
or retention of the money to be advanced under this Revcnue Anticipation Note exceed the
highest lawful rate permissible under applicable usury laws.
13. Successors and Assil!ns. The promises and agreements herein contained shall bind and
inure to the benefit of, as applicable, the respective administrators, successors and assigns of
the parties.
Executed as of the date set forth above at San Bernardino, California.
By:
Approved as to Form:
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Cl Attorney
P:\Agcndu\Agcnda AlIachmcnls\Agcooa Allachmcnls\Agcnda Allachmcnts\Agrmls-Amctld 2009\08-17-09 EDA Budget FY 09-]0 Revenue Anticipation Note,doc