HomeMy WebLinkAbout2011-210
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(COMPANION RESOLUTION: 2011-209, 2011-211, CDC/2011-34, CDC/2011-35, CDC/2011-36
CDC/2011-37, CDC/2011-38, CDC/2011-39, CDC/2011-40)
RESOLUTION NO. 2011-210
RESOLUTION OF THE MAYOR AND COMMON COUNCIL OF THE CITY
OF SAN BERNARDINO, CALIFORNIA APPROVING THE EXECUTION
AND DELIVERY OF AN AGENCY-CITY 2011-2012 LOAN AGREEMENT
AND 2011-2012 NOTE OF THE CITY OF SAN BERNARDINO ("CITY")
PAYABLE TO THE REDEVELOPMENT AGENCY OF THE CITY OF SAN
BERNARDINO ("AGENCY") IN THE PRINCIPAL AMOUNT EQUAL TO
$1,356,250 FOR THE REPAYMENT OF THE $1,332,925 PRINCIPAL
AMOUNT OF THE 2010-2011 NOTE PAYABLE FROM THE CITY TO THE
AGENCY
8 WHEREAS, the City of San Bernardino, California (the "City") is a municipal corporation
9 and a charter city duly created and existing pursuant to the Constitution and the laws of the State of
10 California; and
11 WHEREAS, the Community Development Commission of the City of San Bernardino (the
12 "Commission") acting on behalf of the Redevelopment Agency of the City of San Bernardino (the
13 "Agency"), is a redevelopment agency, a public body, corporate and politic of the State of
14 California, organized and existing pursuant to the Community Redevelopment Law (Part I of
15 Division 24 commencing with Section 33000) of the Health and Safety Code of the State of
16 California (the "Act"); and
17 WHEREAS, the City and the Agency previously entered into that certain loan agreement
18 designated as the "Loan Agreement" dated as of June 28, 2010 (the "Agency-City 2010 Loan
19 Agreement") and that certain Revenue Anticipation Note, dated as of June 28, 2010 (the "2010-2011
20 Note") in the original principal amount equal to $1,332,925 which pursuant to the terms of the
21 applicable loan agreement was required to be repaid by the City to the Agency, together with
22 interest at the rate of interest per annum as set forth in the Agency-City 2010 Loan Agreement, on or
23 before June 30, 2011; and
24 WHEREAS, due to the severe financial crisis that the City continues to experience and the
25 financial inability of the City to timely repay the principal of and interest on the Agency-City 2010
26 Loan Agreement, the City now desires to repay the principal balance of the 2010-2011 Note,
27 together with accrued and unpaid interest thereon, through the issuance and delivery of the 2011-
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1 2012 Note in the manner as herein provided in this Resolution; and the current outstanding balance
2 of the Agency-City 20 I 0 Loan Agreement, together with accrued and unpaid interest thereon, is
3 equal to $1,356,250 (the "2011-2012 Outstanding Balance"); and
4 WHEREAS, it is appropriate at this time for the Mayor and Common Council to approve
5 and authorize the execution and delivery of a Loan Agreement (the "Agency-City 2011-2012 Loan
6 Agreement") and a Revenue Anticipation Note of the City (the "2011-2012 Note") payable to the
7 Agency in the principal amount equal to $1,356,250 for the repayment of the 2010-2011 Note.
8 NOW, THEREFORE, THE MAYOR AND COMMON COUNCIL OF THE CITY OF SAN
9 BERNARDINO DOES HEREBY RESOLVE, DETERMINE AND ORDER, AS FOLLOWS:
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Section 1.
The Recitals hereinabove are true and correct and are incorporated herein by
11 this reference.
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Section 2.
The Mayor and Common Council hereby approves the Agency-City 2011-
13 2012 Loan Agreement in the form as attached to this Resolution as Exhibit "A" and hereby
14 approves the 2011-2012 Note in the form as attached to this Resolution as Exhibit "B".
This Resolution shall take effect from and after its date of adoption by this
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Section 3.
16 Council as provided in the Charter.
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2011-210
RESOLUTION OF THE MAYOR AND COMMON COUNCIL OF THE CITY
OF SAN BERNARDINO, CALIFORNIA APPROVING THE EXECUTION
AND DELIVERY OF AN AGENCY~CITY 2011-2012 LOAN AGREEMENT
AND 2011-2012 NOTE OF THE CITY OF SAN BERNARDINO ("CITY")
PAYABLE TO THE REDEVELOPMENT AGENCY OF THE CITY OF SAN
BERNARDINO ("AGENCY") IN THE PRINCIPAL AMOUNT EQUAL TO
$1,356,250 FOR THE REPAYMENT OF THE $1,332,925 PRINCIPAL
AMOUNT OF THE 2010-2011 NOTE PAYABLE FROM THE CITY TO THE
AGENCY
7 I HEREBY CERTIFY that the foregoing Resolution was duly adopted by the Mayor and
8 Common Council ofthe City of San Bernardino at a Jt. Adj. Regular
meeting thereof,
9 held on the 29th day of
10 Council Members:
11 MARQUEZ
12 VACANT
13 BRINKER
14 SHORETT
15 KELLEY
16 JOHNSON
MC CAMMACK
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18
19
June ,2011, by the following vote to wit:
Ayes
Nays
Abstain
Absent
x
-.lL
X
--1L
X
~
~1:1.~
Rac I G. Clark, CIty Clerk
20 ~
21 The foregoing Resolution is hereby approved this '2:10 day of ~.,. I'l <..
, 2011.
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25 Approved as to Form:
26 By: ~ 4~iUJF
27 ]{'lJameS F. Penman, City Attorney
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~~
City 0 San Bernardino
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LOAN AGREEMENT
THIS LOAN AGREEMENT (this "Agreement") is entered into as of this 30th day of June,
2011, 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
WHEREAS, the Agency loaned an amount equal to $1,332,925 which together with accrued
and unpaid interest is equal to $1,356,250 pursuant to that certain promissory note (the "2010-2011
Note") and loan agreement duly approved and executed by the Parties for the 2010-2011 fiscal year of
the Parties (the "2010-2011 Loan"); and
WHEREAS, the Lender desires to make one (I) principal advance to the Borrower in
accordance with and pursuant to this Agreement and the Revenue Anticipation Note for the sole
purpose of repaying in full the principal and accrued and unpaid interest, with respect to the 2010-
2011 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:
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1. The Loan.
The Lender shall loan to the Borrower a principal amount not to exceed One Million
Three Hundred Fifty-Six Thousand Two Hundred Fifty Dollars ($1,356,250), (the "Loan"), as
evidenced by the 2011-2012 Revenue Anticipation Note, dated concurrently herewith, as executed by
the Borrower in favor of the Lender (the "Revenue Anticipation Note" or the "Note"). The Lender
shall make one (I) advance of principal to or for the account of the Borrower in the principal amount
not to exceed One Million Three Hundred Fifty-Six Thousand Two Hundred Fifty Dollars
($1,356,250), 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 purpose of such advance
shall be deemed to have been made for purposes of repaying in whole the principal amount and
accrued and unpaid interest on the 2010-2011 Loan and for no other purposes.
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 the Loan advance made by the Lender to the
Borrower commencing on the date of disbursement of the 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 ofa 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. Prepayment.
The unpaid principal amount and any interest owing 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. Repavment of the Loan Principal 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, 2012 (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
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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. 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 Pavment 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 ofthis 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.
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(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 the Loan advance under the Revenue Anticipation 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 such Funding Date.
(g) On such 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 Agreement.
(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 shall 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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] O. Term.
This Agreement shall terminate upon the payment in full by the Borrower to the Lender
ofthe Indebtedness.
] 1. 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 Posta] Service. This Section
shall not prevent giving notice by persona] service or te]ephonically verified fax transmission, which
shall be deemed effective upon actual receipt of such personal service or telephonic verification.
Either Party may change its address for receipt of written notice by so notifying the other Party in
writing.
To Lender:
Redeve]opment Agency of the City of San Bernardino
20] North "E" Street, Suite 30]
San Bernardino, California 9240]
Attention: Emi] A. Marzullo, Interim Executive Director
Phone: (909) 663-] 044
Fax: (909) 888-9413
To Borrower:
City of San Bernardino
300 North "D" Street, Sixth Floor
San Bernardino, California 924] 8
Attention: Charles McNee]y, City Manager
Phone: (909) 384-5 ]22
Fax: (909) 384-5138
]2. Governing Law; Jurisdiction.
This Agreement shall be governed by the laws of the State of California, and in the
event either Party seeks judicia] 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 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 terms. No
modification, amendment or waiver of any term herein shall be binding unless executed in writing by
the Parties hereto.
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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 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.
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 body, corporate and politic
By:
Emil A. Marzullo, Interim Executive Director
~
Approved as to Form and Legal Content:
By: .c;:: Vllufr;r-
Agency Counsel
BORROWER
City of San Bernardino,
a charter c' y
B
(SEAL)
ATTEST:
BY:_a...~ IJ.~
City Clerk
Appro"" .. '" FO'7f1l
By 4f&
City ttorney
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EXHIBIT "B"
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2 2011-2012 Note
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REVENUE ANTICIPATION NOTE
$1,356,250
June 30, 2011
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 Fifty-Six Thousand Two Hundred Fifty Dollars ($1,356,250), 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 loan agreement, as executed by and between the Borrower and the
Lender concurrently herewith (the "Loan Agreement").
1. Princiual Advance. This 2011-12 Revenue Anticipation Note (this "Note" or this "Revenue
Anticipation Note") evidences the obligation of the Borrower to the Lender for the repayment
of the loan (the "Loan") made by the Borrower to the Lender under this Revenue Anticipation
Note and under the Loan Agreement. The Lender may make one (1) advance of principal to
the Borrower in the principal amount not to exceed One Million Three Hundred Fifty-Six
Thousand Two Hundred Fifty Dollars ($1,356,250), in the aggregate, subject to the terms,
covenants and conditions of this Revenue Anticipation Note and the 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.
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 the Loan advance made by the Lender to the
Borrower commencing on the date of disbursement of the 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 Loan 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 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. Preuavment. The unpaid principal amount and any interest owing 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.
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4. ReDayment of Loan PrinciDal 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 this Revenue Anticipation Note. On June 30, 2012 (the "Maturity Date"), the Borrower shall
pay to the Lender the unpaid principal amount advanced by the Lender to the Borrower under
this Revenue Anticipation Note and all accrued and unpaid interest at the Interest Rate (as
defined in Section 2) , and any other amounts due under this Revenue Anticipation Note and
the 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 of Payment. 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 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 Loan Agreement, at law or in equity.
6. ADDlication of Payments. All payments received on account of this Revenue 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 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. Attorneys' Fees. The Borrower hereby agrees to pay all costs and expenses, including
reasonable attorneys' fees, which may be incurred by the Lender in the enforcement 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. Notice shall be given as provided in Section 11 ofthe Loan Agreement.
9. GoverniDl~ Law. This Revenue Anticipation Note shall be construed in accordance with and
be governed by the laws of the State of California with venue as provided in the Loan
Agreement.
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10. Severabilitv. If any provision of this Revenue Anticipation Note shall be declared invalid,
illegal or unenforceable, the validity, legality and enforceability of the remaining provisions
hereof shall not in any way be affected or impaired thereby and such remaining provisions shall
be valid and enforceable to the extent permitted by law.
11. 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 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
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. UsurvlMaximum Interest Rate. All agreements between the Borrower and the Lender are
expressly 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 Revenue Anticipation Note
exceed the highest lawful rate permissible under applicable usury or other laws governing
interests rates for public agencies.
13. Successors and Assie: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.
City of San Bernardino
By:
Approved as to Form:
By: I j;(YP~
~ James F. Penman, City Attorney
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