HomeMy WebLinkAbout22- Community Development C17 a OF SAN BERNARD16 _J - REQUE -T FOR COUNCIL AC'► ,DN
From: KENNETH J. HENDERSON, DIRECTOR ,- �fij,tS,� i APPROVAL OF SMALL BUSINESS LOAN
MEAL MANAGEMENT, INC.
Dept: Community Development
Date: January 6, 1988
Synopsis of Previous Council action:
None.
Recommended motion:
Adopt Resolution.
Sign ture
Contact person: Kenneth J. Henderson Phone: 5065
Supporting data attached: Staff Report Ward:
FUNDING REQUIREMENTS: Amount: 50,000.00
Source: (Acct. No.)
(Acct. Description)
Finance:
Council Notes:
,12
CITY OF SAN BERNARD16J - REQUE.. r FOR COUNCIL ACI .JN
STAFF REPORT
On December 15, 1987 , the Economic Development Program
Committee (EDPC) met and approved a loan request submitted by
Meal Management, Inc. The request was for the sum of $50, 000
for a period of fifteen (15) years at six percent (6%)
interest.
Meal Management, Inc. , has been in operation for a period of
seven (7) years as a corporation under seventy percent (70%)
ownership by its president and chairman. The other thirty
percent (30%) of the company is owned by its employees, a
majority of whom are recruited from the California Youth
Authority and the City and County Job Training Program (OJT) .
The company provides a food planning and buying service for
board/care homes serving the developmentally disabled,
mentally retarded, senior citizens and homes for disadvan-
taged and troubled youths.
The company has shown steady and consistent growth as
evidenced by the following ratios:
Sales to Working Capital: 18. 1
Interest Coverage: .84
Net Profit Ratio: 37.0
The growth trends of the company are very strong and are
projected to increase significantly (fifteen percent (15%)
each year) after the loan.
The EDPC recommended approval based upon analysis of the
company' s cash flow statements. The determination was made
that there is sufficient cash flow to cover debt service.
Moreover, five (5) new jobs will be created for individuals
from low and moderate income households (in accordance with
EDP guidelines) . Financial statements, application forms,
and other relevant documents are on file in the Community
Development Department.
Staff, therefore, recommends that the Mayor and Common
Council approve the loan request from Meal Management, Inc. ,
as recommended by the EDPC for the sum of $50, 000 for a
period of fifteen (15) years at six percent (6%) interest.
Additionally, staff recommends that the Mayor and Common
Council adopt the attached resolution which authorizes the
Mayor to execute the attached agreement between the City and
Meal Management, Inc. , for the sum, term and rate specified
above.
Kenneth J. Henders n
Director of Community Development
KJH/lab/0682
1-6-88
1 RESOLUTION NUMBER
2 RESOLUTION OF THE CITY OF SAN BERNARDINO AUTHORIZING AND
3 DIRECTING THE EXECUTION OF A LOAN AGREEMENT BETWEEN THE CITY OF
SAN BERNARDINO AND MEAL MANAGEMENT, INC. , FOR THE PURPOSE OF
4 ACQUIRING PROPERTY FOR EXPANSION OF BUSINESS.
5 BE IT RESOLVED BY THE MAYOR AND COMMON COUNCIL OF THE CITY
OF SAN BERNARDINO AS FOLLOWS:
6 SECTION 1. The Mayor of the City of San Bernardino is
7 hereby authorized to execute, on behalf of the City of San
8 Bernardino, a loan agreement with Meal Management, Inc. , a copy
9 of which loan agreement is annexed hereto as Exhibit 111" and is
10 incorporated herein by reference as though fully set forth at
11 length. The agreement provides for the loaning of funds from the
12 small business loan program in the amount of $50. 000. 00.
13 I HEREBY CERTIFY that the foregoing resolution was duly
14 adopted by the Mayor and Common Council of the City of San
15 Bernardino at a meeting thereof, held on the
16 day of 1988, by the following vote
17 to wit:
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AYES: Councilpersons
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NAYES:
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ABSENT:
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CITY CLERK
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1-6-88
1 The foregoing resolution is hereby approved this day
2 of 1988 .
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4 Mayor, City of San Bernardino
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Approved as to form and
6 legal content:
7
8 CITY ATTORNEY
9 1UH/1 ab
0680
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i
CITY OF SAN BERNARDINO
COMMUNITY DEVELOPMENT DEPARTMENT
"Economic Development Program"
BORROWER: MEAL MANAGEMENT, INCORPORATED
PROJECT TITLE: BUILDING ACQUISITION AND TENANT IMPROVEMENTS
PROJECT ADDRESS: 25839 WALKER STREET
SAN BERNARDINO, CALIFORNIA
LOAN IS NUMBER 88-002 OF COMMUNITY DEVELOPMENT
CONTRACTS.
KJH/lab/0256
_ABLE OF
_Q 4 S I _ S T S
Section
Number Title Page
SECTION I PARTIES, TERM, CONDITIONS PRECEDENT
AND INDEPENDENT STATUS
S101. Parties to the Agreement 2
S102 . Representatives of the Parties and 2
Service of Notices
5103 . Term of this Agreement 3
S104 . Conditions Precedent 3
5105. Independent Contractor Status of 3
the Borrower
SECTION II PURPOSE OF AGREEMENT AND LOAN, LOAN
TERMS, AND PROMISSORY NOTE
S201. Purpose of the Agreement 4
S202 . Purpose of the Loan 4
S203. Terms of the Loan 4
S204 . Promissory Note 5
SECTION III REPRESENTATIONS AND COVENANTS OF
BORROWER, AND DEFAULT
S301. Representations of the Borrower 6
S302. Covenants of the Borrower 7
S303 . Default 8
SECTION IV REPORTS, RECORDS AND AUDITS
S401. Reporting Requirements 10
S402. Maintenance of Records 10
5403 . Audits and Inspections 11
S404. Validity of Financial Documentation 11
Submissions
i
TABLE OF CONTENTS (Cont. . .
Section
Number Title Page
S405. Release of Funds from Escrow 11
S406. Reconveyance Fee 12
SECTION V GENERAL TERMS AND CONDITIONS
S501. Indemnification and Insurance 12
Requirements
5502 . Prohibition Against Assignment 13
S503. Limitation of Corporate Acts 13
S504. Amendments and Waivers 14
5505. Compliance with Statutes and 14
Regulations
S506. Conflict of Interest 14
S507 . Political Activity Prohibited 16
S508. Lobbying Prohibited 16
S509. Installation of Financial Assistance 16
Sign
S510. Press Releases 16
S511. Discrimination Prohibited 16
S512. Nondiscrimination, Equal Employment 17
Practices, and Affirmative Action Plan
S513 . Employment Opportunities for Business 17
and Lower Income Persons
S514 . Participation of Minorities, Women and 18
Small Businesses
S515. Captions 18
S516. Effect of Legal Judgment 18
S517. Choice of Law Governing this Agreement 19
S518. Prohibition of Legal Proceedings 19
S519. Rights and Remedies 19
ii
TABLE OF CON-ENTS (Cont. . . )
Section
Number Title FAcLe
SECTION VI ENTIRE AGREEMENT
S601. Complete Agreement 19
5602 . Number of Pages and Attachments 19
Execution (Signature) Page 19
ATTACHMENTS
Attachment I -- Employment Action Plan
Attachment II -- Insurance Requirements
KJH/lab/0257
iii
AGREEMENT NUMBER 88-002
BETWEEN THE CITY OF SAN BERNARDINO AND THE
MEAL MANAGEMENT, INCORPORATED (RELATING TO) THE
BUILDING ACQUISITION AND TENANT IMROVEMENTS PROJECT
-------------------------------------------------------------------
THIS AGREEMENT is made and entered into by and between the
City of San Bernardino, a municipal corporation, hereinafter call
"City" , and MEAL MANAGEMENT, INCORPORATED
hereinafter called the "Borrower" .
W I F E H S E I H
WHEREAS, the City has entered into a Grant Agreement with
the United States Department of Housing and Urban Development,
hereinafter called the Grantor, pursuant to Title I of the Housing
and Community Development Act of 1974, as amended, hereinafter
referred to as 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:
1
SECTION I.
PARTIES, TERM, CONDITIONS PRECEDENT, AND INDEPENDENT STATUS
S101. Parties to the Agreement.
The parties to this Agreement are:
1. The City of San Bernardino, a municipal corporation,
having its principal office at 300 North "D" Street, San
Bernardino, California 92418.
2 . The Borrower, Meal Management, Incorporated ,
having its principal address at 25839 Walter Street
San Bernardino California
The Borrower is ( a ) California Corporation
(fictitious name enterprise, individual, California
Corporation/general partnership/limited partnership. )
S102 . 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:
Clifton W. Conard
22.51 Monterey Peninsulta Avenue
Corona, California
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
2
_ ..,
days of said change.
S103 . Term of this Agreement.
This Agreement shall remain in full force and effect from
the date of execution by Borrower of the Promissory Note,
until such time as said Promissory Note is paid according to
its terms, subject to the provisions of S303 herein.
5104 . 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.
5105. 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, AND PROMISSORY NOTE
3
�i
S201. purpose of the Agreement.
The purpose of this Agreement is to provide
FIFTY THOUSAND AND 0O/100--------------------------------------- Dollars
($ 50,000.00 ) of EDP funds to be loaned by the City to the
Borrower, hereinafter called the "Loan" , for the purpose and
under the terms and conditions set forth herein.
S202 . Purpose of the Loan.
The purpose of the Loan is to provide financial assistance
to enable the Borrower to:
Acquire a building site for office space and warehousing of food products.
Approximate space needed is 6,000 square feet.
a. General Office Space Apnrox. 400 square feet_
h. Offices Approx. 600 square feet
c. General Use Facilities Approx. 6nO sgiiare feet
d. Walk-in Coolers and Freezers Approx. 700 square feet
e. Loan Assemhiv Room Annrox. 600 square feet
f. Dry Warehouse Space Approx. 3,100 square feet.
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
FT_FTY THOUSAND AND nO/100-------------------- DOLLARS, ($50,OnO.00 )
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 Six Percent
( 6/ ) per annum, (c) be for a term of Fifteen ( 15 )
years, and (d) provide for payment of the principal amount
thereof and the interest thereon in one-hundred, eighty
( i ftn ) equal monthly installments of FOUR HUNDRED, TWENTY ONF.
-AND_98/100---------------------------------------------------- DOLLARS
($421.98 ) , each including principal and interest, and
continuing until said principal and interest are paid in
full.
C. Each monthly installment shall be applied first to the
4
payment of interest then accrued to the date the payment is
received, and the balance, if any, to the reduction of the
principal.
S204 . Promissory Note.
A. The obligation of the City to make the Loan is subject to
receipt by the City of the Note and, at the City' s sole
discretion, to the following additional conditions
precedent:
1. The representations and warranties made herein by the
Borrower shall be true and correct at the time of
consideration by the Mayor and Common Council of the
City of San Bernardino with the same effect as though
made at the Closing.
2. Receipt by the City from the Borrower of all executed
documents in connection with this Agreement; satisfac-
tory in form and substance to the City.
3. If matching funds constitute a part of this Agreement,
then Borrower shall obtain matching funds in an amount
equal to the amount of this loan and, as required by the
City, deposit said matching funds into an account with
Escrow Agency.
4 . The City and the Borrower have mutually agreed to the
terms and conditions as set forth in the Employment
Action Plan, which is attached hereto as Attachment I
and by this reference is incorporated herein.
B. The Note is to be secured as follows:
-Deed of Trust
-Accounts Receivable
-Personal Guarantee
These documents shall be approved by the City Attorney and attached
hereto as Exhibits 3, 4 and 5, respectively before execution of
the agreement by City.
C. Borrower shall have the right, without penalty, to prepay
the Note together with the accrued interest thereon as of
the date of such prepayment.
D. The Borrower acknowledges and agrees that the amount being
provided under this loan shall be for a total of
FIFTY THOUSASND AND 00/100----------DOLLARS, ($ 50,000.00 ) , 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.
5
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
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 25839 Walker Street, San Bernardino, California ,
San Bernardino, California, and it is free and clear
from all liens except as set forth
herein: Chino Valley Bank Line of Credit -- $23,629
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.
6
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 November 30_ 1997
except changes in the ordinary course of business, none of
which, individually or in the aggregate, has been materially
adverse.
5302 . 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.
7
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)
7.998 The Annual Employment Report shall
detail Borrower's compliance with the Employment Action
Plan, Attachment I attached hereto and by this reference
incorporated herein, for the preceding twelve (12) month
period.
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 nonrenewal 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.
S303 . Default.
A. The entire unpaid principal of the Note, and interest then
accrued thereon, shall become and be forthwith due and
8
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 any one 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 (60) consecutive
days.
6. 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
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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
5401. 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
December 1988 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
10
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.
5403 . 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
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,
11
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. Reconveyance Fee
In the event that real property is used to secure this Loan,
then Borrower agrees to pay any costs incident to title
reconveyance, including, if applicable, trustee's fees,
attorney fees, document preparation fees, recording fees or
any other related expenses.
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:
I. 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
12
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 Against Assignment
A. The Borrower shall not assign this Agreement, nor assign or
transfer any interest or obligation in this Agreement
(whether by assignment or novation) without prior written
consent of the City. No part of the property securing this
Agreement shall be assigned or transferred (except sales of
inventory in the ordinary, course of business) , nor shall
such property be pledged, without the prior written consent
of City.
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.
S503. Limitation of Corporate Acts
13
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 Regulations.
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
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
14
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, motherin-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
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
15
dino, State of California, and Federal regulation regarding
conflict of interest.
G. The Borrower warrants that it has not paid or given and will
not pay or 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 or 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 . Lobbying Prohibited.
None of the funds provided under this Agreement shall be
used for any purpose designed to support or defeat any
pending legislation or administrative regulation.
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 receiving
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.
S511. 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
16
be subjected to discrimination under this program /project.
For purposes of this Section, title 24, Cade of Federal
Regulations Section 570. 601 (b) defines specific
discriminatory actions which are prohibited and correction
action which shall be taken in situations as defined
therein.
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 . Employment Opportunities for Business and Lower 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
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
17
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
conspicuous places available to employees and applicants
for employment and training.
4 . The Borrower will include this Section 3 clause in every
subcontract for work in connection with the project and
will, at the direction of the applicant for or recipient
of Federal financial assistance, take appropriate action
pursuant to the subcontract upon a finding that the
subcontractor is in violation of regulations issued by
the Secretary of Housing and Urban Development, 24 CFR,
Part 135. The Borrower will not subcontract with any
subcontractor where it has notice of knowledge that the
latter has been found in violation of regulations under
Title 24 , CFR 135 and will not let any subcontract
unless the subcontractor has first provided it with a
preliminary statement of ability to comply with the
requirements of these regulations.
5. 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.
5514 . 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 Legal Judgment.
Should any covenant, condition or provision herein contained
be held to be invalid by final judgment in any court of
competent jurisdiction, the invalidity of such covenant,
18
condition or provision shall not in any way affect any other
covenant, condition or provision herein contained.
5517 . Choice of Law Governing this Agreement.
This Agreement shall be governed by and construed in accor
dance with the laws of the State of California.
5518 . Prohibition of Legal Proceedings.
The Borrower is prohibited from using Grant funds received
under this Agreement, or funds realized as a result of this
Agreement, for the purpose of instituting legal proceedings
against the City or its official representative.
S519. Rights and Remedies.
In the event any party fails to perform, in whole or in
part, any promise, covenant, or agreement heren, or should
any representation made by it be untrue, any aggrieved party
may avail itself to all rights and remedies, at law or
equity, in the courts of law. Said rights and remedies are
in addition to those provided for herein.
SECTION VI.
ENTIRE AGREEMENT.
S601. Complete Agreement.
This Agreement contains the full and complete Agreement
between the two parties. No verbal agreement or conversa
tion with any officer or employee of either party shall
effect or modify any of the terms and conditions of this
Agreement.
S602 . Number of Pages and Attachments.
This Agreement is executed in three (3) duplicate originals,
each of which is deemed to be an original. This Agreement
includes, pages and
attachments which
constitute the entire understanding and agreement of the
parties.
19
MEAL MANAGEMENT, INCORPORATED
IN WITNESS WHEREOF, the City of San Bernardino and thee
Borrower have caused this Agreement to be executed by their duly
authorized representatives on this day of
, 19
MAYOR OF THE CITY
OF SAN BERNARDINO
BY
(CORPORATION)
BY
Corporate President
ATTEST:
BY
Corporate Secretary
Approved as to form
and legal content:
BY f
City Attorney
i
KJ �7'lab/0683
20
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/lab/0254
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.
1
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 form(s) 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)
NAME MEAL MANAGEMENT, INCORPORATED DATE Jan. 7, 1988
AGREEMENT/REFERENCE NUMBER 88-002
The following coverages noted with an "X" are required with the
Combined Single Limits (CSL) as noted on the right.
Limits
X Worker's Compensation Statutory
Employers Liability $ 100, 000
( ) Broad Form All States Endorsement
( ) Voluntary Compensation Endorsement
( ) Longshoremen's and Harbor Workers '
Compensation Act Endorsement
X General Liability $1, 000, 000
(X ) Premises and Operations
( ) Contractual Liability
( ) Independent Contractors
( ) Products/Completed Operations
(X ) Broad Form Property Damage
(X ) 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
(
x Automobile Liability (if auto is used for $1, 000,000
this contract. )
Professional Liability (if applicable) $ 500, 000
X Property Insurance 90% value of
building
( ) Extended Coverage
( ) Vandalims and Malicious Mischief
( ) Flood
( ) Earthquake $
3
( ) Debris Removal
( ) Sprinkler Leakage
( ) Windstorm
( ) Other
Aircraft Liability (bodily injury and S
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
x Fire Legal Liability 90% of cost
of replace-
ment.
Fidelity Bond S 25, 000
minimum
KJH/lab/0255
4