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HomeMy WebLinkAboutCen Cal Business Finance Group - Revolving Loan Fund for a period of 10 yearsFRESFIQ REPORT TO THE CITYCOUNCIL AGENDA ITEM NO. A� COUNCIL MEETING I3/908 Defember 9, 2008 11IDN)IM) III FROM: SCOTT L JOHNSON, Director cnv Muusaa Ecerromic Development Dep I . BY: GEORGE E_ SMITR, Interim Assistant Director. / - Ecmromic Development Departrnent SUBJECT: APPROVE THE AGREEMENT BETWEEN THE CITY OF FRESNO AND CEN CAL BUSINESS FINANCE GROUP FOR THE ADMINISTRATION OF THE Cf OF FRESNO REVOLVING LOAN FUND FOR A PERIOD OFTEN YEARS. Economic Development nesenae:o cwc000l Me 9 0 approve the agraemaia C,5, 0, eo. !1. 19%The City of Fresno entered subs an agreement wiM Fresno Carl Development naw known as Con Cal Business Finance Group, bs administarlha City of Fresno Revolving Loan Thal onginal agreernen t will aspire on January 21, 2009. %P) was developed in orderro iMntlYy and sa d Me most qualified Mganira mW next 10 years. Ore proposal was mcolved, ham tfre anent sewi pmNder, Can xaposal received from Cen Cal was completely satisfactory, and mud continue the administration of Me an the same terms as Me cunant agreement. Therefore, Me Economic Development Departnent amends Mat Couial appmve a new 10.year agreement went Con Cal Business Firanco Group bs nester Me City b Fresno Revolving Tuan Fund. my ob)eclWes are addressed. Customer Satisfaction. businesses and Winans will Deralt from Me availability of furWing. Employee Satisfectlonemployees will baneM from Me healMier es sustained by ecanamic growM. FNandal Management: the City will benefdhom a stronger Iwrer unemployment, ant a broadened lax Was 19a[N:(H3ePLT] In 1980, Me U. S. Depahment W Commerce, Emnomic Devela M Adminislratien, appmved a gram W Me City of Fresno W establish a revolving loan fund (RIF). On January 21, 1999 The City of Fresno entered into an agreement with Fresno Certified Development Corporation, now known as Cen Cal Business Finance Group, to administer the City of Fresno Revolving Loan Fund (RLF). That original agreement will expire on January 21, 2009. During the summer of 2008, the Economic Development Department worked with the Purchasing Division of the General Services Department, and the City Attorney's Office, to develop a Request for Proposal (RFP) in order to identify and select the most qualified organization to administer the RLF for the next 10 years. Based on staff's knowledge of organizations qualified to provide these very specialized aced on thte he RFs web stsitesent to four organizations. In addition, the RFP was advertised (peCitof y p y) and P In response to the RFP, one proposal was received. That proposal was from the current service provider, Cen Cal Business Finance Group. Cen Cal's proposal was completely satisfactory, and will continue the administration of the RLF on the same terms as the current agreement. Because of the nature of the RLF, there is not a specific dollar amount of compensation paid to Cen Cal. Instead Cen Cal is permitted to retain a portion of the income generated by the RLF. That portion is set by the program requirements of the U S Department of Commerce. Based on experience with the current agreement, the total compensation would be approximately $160,000 over the 10 -year term of the agreement. That amount could be higher or lower depending on factors including outstanding loan balances, interest rates, and loan losses. In addition to administering the City's RLF successfully for the last 10 years, Cen Cal administers a number of other similar loan programs. Therefore, the Economic Development Department recommends that Council approve a new 10 -year agreement with Cen Cal Business Finance Group to administer the City of Fresno Revolving Loan Fund. FISCAL IMPACT Funding for this agreement was included in the Department's FY 2009 budget, so there will be no need for additional appropriations. Attachment: Original agreements 2 1M 12/9/08 Florio zV R,k. alts lerplr9l AGREEMENT FOR ADMINISTRATION OF CITY OF FRESNO REVOLVING LOAN FUND THIS AGREEMENT is made and entered into effective the 21st day of January, 2009 ('Effective Dale'J, by and between the CITY OF FRESNO, a Colifomia municipal corporation (hereinafter referred to as the'CITY'), and CEN CAL BUSINESS FINANCE GROUP, a California rwn-proflt organization (hereinafter referred to as the 'ADMINISTRATOR'), RECITALS A. In 1900 the U.S. Department of Commerce — Economic Development Administration ('EDA") approved a Grant (the 'Grant') to CITY to establish a rewlving loan fund program ('RLP). B. The CITY is obligated to administer the Grant in compliance with the (i) Grant Award; (it) Revolving Loan Fund Financial Assistance Aware Standard Terms and Conditions, dated October 9, 2007. as may be amended: and (Iii) Revolving Loan Fund Program Adrninistrabso Plan ('Plan'), dame effective January 2, 2008, as may be amended (collectively miled the'Program Requirements"). 0 RLF Grant funds may only be lent to businesses that meet Program Requirements, and any guidelines that me CITY has established, and the ADMINISTRATOR may establish under this Agreement that are consistent with the Program Requlremants. D. The Program Requirements permit has CRY to engage to services of another organization to perform certain dudes and responsibiliges under the. RLF Grant. E. ADMINISTRATOR is engaged in the business of famishing technical and exiled sentries as an administrator of loan programs and hereby represents that it desires to and is professionally and legally capable of performing the services calletl for by this Agreement. F. ADMINISTRATOR has submitted a proposal to the CITY under rover letter dated November 3, 2008, In response to the CITY'S entering Request for Proposals ('RFP') for the administration of the RLF, under RFP No. 9027. G. The EDA wants to continue me RLF with the CITY, and the CITY wants to engage ADMINISTRATOR as an Independent contractor to administer me RLF for the CITY H. ADMINISTRATOR acknowledges that this Agreement Is subject to the requirements of Fresno Municipal Code Section 4107 and Administrative Order No. 6-19. L This Agreement W11 be administered for CITY by its Economic Development Department Director (hereinafter refined to as 'Director') or his/her designee_ LLr1034,lI4hid NOW, THEREFORE, In consideration of the foregoing and of the covenants, conditions, and premises hereinafter contained to to kept and performed by the respective parties. It is mutually agreed as follows; t. Condition Precedent to the Effect'vaness. This Agreement will not became effective until the CITY and ADMINISTRATOR have met any conditions imposed by the EDA to parmil ADMINISTRATOR to draw against the RLF Grant fund for making loans and paying administrative expanses inducing, without limitation, making any modifications to this Agreement necessary to comply with Program Requirements. 2. The Services. CITY engages ADMINISTRATOR to provide the services set forth In Exhibit A and to market and administer the RLF that (I) strictly complies with the Program Requirements, current copies of which have been delivered to ADMINISTRATOR, ark (it) camplies with the CITY's guidelines set forth herein, to the extent practicable and consistent with the Program Requirements (collectively, Me'Servicas'). As of the Effective Date, the halance available In the RLF Grant is $059,990.00. ADMINISTRATOR shall maintain a local office and use local underwriting and approval. 3 Compensation. ADMINISTRATOR's compensation far the Services Is payable from and limited to the RLF income it generates through granting and collecting loans. ADMINISTRATOR will retain the compensation from the RLF income strictly as permitted under the Program Requirements for administration expenses. Income generated under the RLF may Include, to Ne extent permcted under Program Requirements, loan packaging, tee income. Interest income, and loan semdng income. CITY will not compensate ADMINISTRATOR for SeMces in any other manner. CITY will not pay any additional compensation to ADMINISTRATOR, and will not reimburse it for any administrative, marketing or other costs associated with its Services. Subject to the limitations above, any compensation for administration expenses will be limited to the following fees at the following rates: (i) Application Fees $ 25.00 (it) Packaging Fees $ 500.00 in) Loan Origination Fei 1.5% IV) Servicing Fees $ -a- (y) Other Fees— 'The application fee is in addition to packaging fees. "Represents percentage of respective amount of loan. ^'Any public tiling fees will be at the then current rate. Minimum interest rate charge per EDA guidelines Is 4%. 4. Term of Agreement, SQaosmsem and Tenni nation. (a) The term of this Agreement shall be 10 years beginning on the Effective Date, subject to any earlier termination In accordance with this Agreement. (b) The CITY may krminank this Agreement without cause by giving the other parry 60 days prior written barred. Upon writthn notice to the ADMINISTRATOR, CITY may suspend new lending activity by AOMMIISTRATOR pending ADMINISTRATOR's taking corrective actions as specified by Me Director. Either only may laminate this Agreement an cause after giving the other party prior written notice and at least 30 days to cure the default. Upon expiration or early termination of this Agreement by CITY without cause, ADMINISTRATOR shall aid Me CITY in continuing, uninterruptedly, the requirements of this Agreement, by continuing to perform on a temporary basis, when spectrally requested to do so in wilting by the Director, for a specified term not W exceed twelve months_ (c) On expiration or lamination of this Agreement, any uncollected principal and interest loan funs,. any unlsbursed RLF Grant funds, and any undisbursed revolving borrowing base, subject to Program Requirements, will be paid or assigned to the CITY. Unless mocifed by mutual agreement of the parties, on expiration or termination of the Agreement, ADMINISTRATOR will return all documents to CITY or, at the CITY's request, to Ne Cf1i new RLF administrator. ADMINISTRATOR will cooperate with CITY and any new RLF adminisbater to inordinate transfer of documents, payments, and servldng data including, without limilagon, all computerfles. (d) If ADMINISTRATOR fails to perform any obligation under this Agreement, and tices not cure the (allure within 30 calendar days after CITY gives written notice of q the failure will be a material broach of this Agreement. The CITY may after that immediately terminate this Agreement, and nitrides any right. remedy or privilege available to It under this Agreement, at law or in equity. 5. Aesumnoes and Force Ml . (a) ADMINISTRATOR shall protide CITY with adequate written assurances of future performance, upon Directors request, In the event ADMINISTRATOR fails to comply with any terms or conditions of this Agreement. (b) ADMINISTRATOR shell ba liable for default unless nonperformance is usual by an occurrence beyond the reasonable control of ADMINISTRATOR and without Is fault or negligence such as, acts of Gotl or the public enemy, acts of CITY In Its contractual capacity, fres, funtls, epidemics, quamnfine restrictions, stokes, unusually severe weather, and delays of common carriers. ADMINISTRATOR shall notify Director in writing as soon as it is reasonably possible after the commencement of any excusable delay, setting forth the full particulars in connection therewith, and shall remedy such occurrence with all reasonable dispatch, and shall promptly glue written notice b Director of the cessation of such ccourrence. ADMINISTRATOR shall have no claim for damages against CITY for any such cause of delay, but shall be entitled to an extension of time necessary to complete performance as deferral by the Director. The decision of the Director as M me number of additional days, if any, to be allowed for completion on account of such occurrence will bB given in writing to ADMINISTRATOR. fi. Compliance with all laws and Reaulatiam ADMINISTRATOR will perform the Services In compliance with the Program Requirements, and all applicable laws, ordinances, regulations, and guidelines, as existing, and after this amended, whether Werel, stale, regional, or by local administrative or regulatory agencies. 7. Books and Records. AOMINISTRATOR will maintain segregated accounts, books, and records for the RLF, and will not combine any accounts, books, or records with gorse for loans it administers for any other program or entity, or its general books, accounts and records. ADMINISTRATOR will maintain the records for at least 4 years after this Agreement laminates, or 4 years after each loan matures or Is paid whichever Is later. In the event ADMINISTRATOR is making loans to a borrower under both the RLF and another program, copies of all application documents Including, without limitation, loan applications and financial statements, shall be Included in the RLF file. Copies of all updated financial statements prepared during the servicing period shall also be Induced In the RLF file. This section shall survive expiration or tenminfi lon of tris Agreement. 8. Audits and Reports. ADMINISTRATOR will comply and be solely responsible for complying wAh repoding and audits required by EDA and its program requirements. ADMINISTRATOR will prepare reports and audits semiannually, or as otherwise required by EDA and Program Requirements and forwent to the CITY. The CITY is responsible to Me EDA for Me compliance and mapping requirements. The CITY and Me EDA may audit ADMINISTRATOR'S books and records for the RLF anytime dump this Agreement and at least 4 years after this Agreement terminates or 4 years after each can matures or Is paid, whichever Is later. Upon CITY's request. ADMINISTRATOR shall immediately make available and give CITY staff access to ADMINISTRATORS RLF Grant progrem books, records, loan filesr financial statements, and computer or other electronic reaches, CRY will conduct any audits during normal business hours. Audits performed by ounces Cadined Public Accountants will be at the expanse of the requesting perry. ADMINISTRATOR will cooperate with CITY by providing informal needed to satisfy CITYs single audit requirements. Any monies determined to he awed CITY§ RLF or the EDA shall be paid promptly by ADMINISTRATOR along with any interest charge approved in accordance with Me Program Requirements. This section shall survive expiration or terminal of this Agreement. 9. IndemniFrshon. (a) To the furthest extent allowed by law, ADMINISTRATOR shall indemnity, hold harmless and defend CITY and each of its officers, officials, employees, agents and authorized volunteers from any and all loss, liability, fires, penalties, formitures, costs and damages (whether in centrad, tort or strld liability, including but not limited to personal Injury, death at any time and property damage), and from any and all claims, demands and scheme In law or equity (including reasonable attorneys fees and litigation expenses) that arise out Of, pertain to, of relate to the negligence, recklessness or willful misconduct of ADMINISTRATOR, its principals, officers, employees, agents or authodzed volunteers in the performance of this Agreement. (b) ADMINISTRATOR shall proles and hold CITY and EDA harmless from and against all liabll4ies that may ansa as a result of providing an award to assist (directly or indirectly) in see preparation or construction as well as renovation or repair of any facillry, or site. This applies to the extent that such liabilities are incurred. bemuse of ground water, surface, soil or other conditions mused by operations of borrower or any of its predecessors on the property. (o) If the ADMINISTRATOR subcontracts all or any parfion of the Services to be performed under this Agreement, the ADMINISTRATOR shall rea lra each subcontractor to Indemnity, Mid harmless and defend the CITY and each of its offimrs, officials, employees, agents and auModzed volunteers in accordance with the terms of preceding peragaph (a) and CITY and EDA in accordance will the terms of preceding paragraph (b). (d) This section 9 shall survive the termination or expiration of this Agreement. 10. Insurer (a) Throughout me life of t0is Agreement, ADMINISTRATOR shall pay for and maintain in full form and effect all insurance as required in Exhlbk B or as may be authorized In were by ClT s Risk Manager or hisrher designee at any time and In hislher sole discretion. M) If at any time during the life of are Agreement, ADMINISTRATOR or any of Its subcontractors fail to maintain any required insurance in full force and effect, all Services and work under this Agreement shall be discontinued Immediately, and all compensation due or becoming due to ADMINISTRATOR shall accrue to the CITY's account unfit CIN receives notice ark evidence Net ADMINISTRATOR has restored the required Insurance to full face and effect and has pall Me premiums therefore for a period satisfactory to CITY. Any failure to maintain the required Insurance shall be sufficient rause for CITY t0 terminate that Agreement. No action taken by CITY pureuant to this section shell In any way relieve ADMINISTRATOR of Its responsibilities under this Agreement. The phrase 'fail to maintain any required insurance" shall Include, without limitation, notdicfii n received by CITY Mat an insurer has commenced proceedings, or has had proceedings commenced against it, indicating that the Insurer is Insolvent. (c) The fact that Insurance is obtained by ADMINISTRATOR shall not he deemed to release or diminish the liability of ADMINISTRATOR, including, without limitation, liability under Me Indemnity provisions of this Agreement. The duty to indemnify CITY shall apply to all claims and liability regardless of whether any insurance policies are applicable. The policy limits do not act as a limitation upon the amount of Indemnification to be provided by ADMINISTRATOR Approval or purchase of any Insurance contracts or pollees shall In no way relieve from liability nor limit the liability of ADMINISTRATOR, its pdnupals, officers, agents. employees, persons under the supervision of ADMINISTRATOR vendors, suppliers, invitees, consultants, sub- consultants, subcontractors, or anyone employed direcay or indirectly by any of Mand, (d) Upon request of CITY, ADMINISTRATOR shall immediately furnish CITY with a complete copy of any insurance sandy requlred under this Agreement, including all endorsements, wind sold copy carti8ad by Me underwriter to be a true and correct copy of the original Ibi Thisrequlrement shall survive expiration or Ruminator of Mis Agreement. (e) R ADMINISTRATOR should subcontract all or any pordon of the Services to be performed under this Agreement, ADMINISTRATOR shall require each subcontractor H moves Insurance protection in favor of CITY and each of its officers, officials, employees, agents and authorized volunteers in acceptance with Me terms of this section, except Met any required certificates antl applicable endorsements shall be on file with ADMINISTRATOR and CITY prior to the commencement of any Services by the subcentractor. 11. Fidelity Bond or Crime Insurance. Throughout Pre life of Mis Agreement, ADMINISTRATOR will either pay for and maintain in full force and effect (1) a Fidelity Bond tram a Treasury Listed corporate surety, admitted by the California Insurance Commissioner to do business in the State of Cegfomia. In the amount of $880,000, naming the CITY and EDA as obligees. Hereunder; or (it) a policy of Commercial Crime insurance In accordance AM Section 10, above, which shall include coverage for employee Matt win limits of liability of not less than $881 (the policy shall contain a Blanket Client Property — Off Premises Endorsement and Joint Lass Payee Endorsement In favor of the CITY). 12. 0811 ofInterest and N -S IIT( - (a) Prior to CITY'a execution of this Agreement, ADMINISTRATOR shall complete a City of Fresno conflict of interest disclosure statement in the form as set forth in Exhibit C. During He term of this Agreement. ADMINISTRATOR shall have Me obligation and duty to immediately notify CITY In wnfing of any change to the Information provided by ADMINISTRATOR in such statement. (b) ADMINISTRATOR shall comply. and nal its subcontractors to comply, with all applicable (i) professional canons and requirements governing avoidence of Impermissible client conflicts: and (it) federal, state and local confild of Interest laws and regulations Including, without limitafion, 13 C.F.R. § 302.17, California Government Code Search 1080 at. seq., me California Political Reform Act (Calffomia Government Corte Section 89100 at seal and the regulations of the Fair Political Practices Commission concerning disclosure and disqualification (2 California Code of Regulations Section 18700 at. seri Al any time, upon written request of CITY. ADMINISTRATOR shall provide at its sole cast and expense a ended opinion of its legal counsel and that of any subcontractor that, after a due diligent idol ADMINISTRATOR and the respective subcontraclor(s) are in full compliance with all laws and regulations. ADMINISTRATOR shall take, and require Its subcontractors to take, reasonable steps to avoid any appearance of a cordlid of interest. Upon discovery of any facts giving rise to the appearance of a conflict of Interest, ADMINISTRATOR shall immedlately noldy CITY of these facts in writing. (c) In pedomring the work or Services to be provided hereunder, ADMINISTRATOR shall not employ or retain the services of any pereon while such person either is employed by CRY or is a member of any CITY council, commission, bond, committee, or similar CITY body. Thls requirement may be waived In writing by the City Manager. X no actual or potential cantct Is Involved. (d) ADMINISTRATOR represents and warrants that It has not paid or agreed to pay any compensation, contingent or oherwise, direct or Indirect, to solicit or procure this Agreement or any rlghtslbenefts hereunder. (e) Neither ADMINISTRATOR, nor any of ADMINISTRATOR's subcontractors pert rming any Services, shall bid for, assist anyone In the preparation of a bid for, or perform any services pursuant to, any other contract in connection With thus RLF unless fully disclosed to end approved by the City Manager, in advance and In writing. ADMINISTRATOR and any of Its subcontractors shall have no interest, direct or indirect, In any other contractwtlh a third party In connection with the RIF unless such Interest is in accordance with all applicable law and fully disclosed to and approved by the City Manager, In advance and In whom. Notwithstanding any approval given by the Clty Manager under this provision. ADMINISTRATOR shall remain responsible far complying with paragreph (b), above. (f) If ADMINISTRATOR should subcontract all or any ponlon of the work to be pedonned or Services to be provided under this Agreement, ADMINISTRATOR shall Include the provisions of this section in each subcontract and require Its subcontrectors to comply therewih. (g) This section 12 shall survive expiretlen or termination of this Agreement 13. Further Grant Applications and Responses. ADMINISTRATOR, with support horn the CITY, will solicit, apply and respond appropriately b future EDA grant posslbllities in support of this RLF. RLF funds and or income will not be utilized to cover related expenses for the sdicitation of future grant funds. 14. ADMINISTRATOR Representations and Warranties. ADMINISTRATCR represents and warrants that the fedual statements set forth in Us proposal to the CITY under the RFP are true and, during the terms of this Agreement, ADMINISTRATOR will notify the CITY of any changes that may affect ADMINITRATOR or its ability to carry out its obligations under this Agreement. 16 Indeoendenl Contractor. (a) In the fumishlng of the Services, ADMINISTRATOR is acting solely as an independent contras lou. Neither ADMINISTRATOR. nor any of its officers, agents or employees shall be deemed an officer, agent, employee, joint various, partner or associate of CITY for any purpose. CITY shall have no right to control or supervise or direct the manner or method by which ADMINISTRATOR shall perform Its work and functions. However, CITY shall retain the right to administer this Agreement so as to verify that ADMINISTRATOR Is performing its obligations in accordance with the terms and conditions thereof. (b) This Agreement does not romance a partnership or joint venture between ADMINISTRATOR and CITY. ADMINISTRATOR shall have no authority to bind CITY absent CITY's express woman consent. Except to the extant otherwise provided In this Agreement, ADMINISTRATOR shall bear its own costs and expenses in pursuit mental (c) Because of its status as an independent contractor, ADMINISTRATOR and its officers, agents and employees shall have absolutely no right to employment rights and benefits available to CITY employees. ADMINISTRATOR shall be solely liable and responsible for all payroll and tax withholding and for providing to. or on behalf of. its employees all employee benefits including, without finia n, health, welfare and retirement benefils. In addition. together with its other obligations under this Agreement, ADMINISTRATOR shall be solely responsible, indemnify, defend and Save CITY harmless from all matters relafing to employment and tax withholding for and payment of ADMINISTRATOR's employees, including, without limitation. (I) compliance with Social Security and unemployment Insurance withholding, payment of workerscompemsation benefits, and all other laws and regulations governing matters of employee withholding, trues and payment: and (it) any claim of right or interest In CITY employment benefits, entitlements, programs andfor funds offered employees of CITY whether arising by reason of any common law, the fact, leased, of co�employse rights or ether theory. It is acknowledged mal during the term of this Agreement, ADMINISTRATOR may be providing services to others unrelated to CITY or to this Agreement. 16, Nondiscrimination. To the extent required by controlling federal, state and local law. ADMINISTRATOR shall not employ discriminatory practices In the provision of Services, employment of personnel, or In any other respell on the basis of race, religious creear calor, national origin, ancestry, physical disability, mental disability, medical contlition, marital status, sex, age, sexual orientafron, emnigty, status as a disabled veteran or veteran of the Vietnam am. Subject to the foregoing and during the performance of this Agreement, ADMINISTRATOR agrees as follows: (p ADMINISTRATOR will cul with all applicable laws and regulations providing that no person shall, on the ground of race, religious creed, worst, national origin, ancestry, physical disability, mental disablliry, medical condition, marital status, sex, age, sexual orientation, ethnicity, status as a disabled veteran or veteran of the Vietnam era be excludetl from par cipation In, be denied the benefits of, or be subject to discrimination under any program or activity made possible by or resulting from Mils Agreement. (Ii) ADMINISTRATOR will not dlacmminate against any employee or applicant for employment because of race, religious used color, national origin, ancesM, physical disability, mantel disability, medical condition. mantel status, sex, age, sexual odentation, ethnicity, status as a disabled veteran or veteran of the Vietnam era. ADMINISTRATOR shall ensure that applicants are employed and the employees are treated during employment, without regard to their race, religious creed, color, national origin, ancestry, physical Mail mental disability, medical condition, martial status, sex, age, sexual odentation, etbnidty, status as a disabled veteran or veteran of the tAemam ere. Such requirement shall apply to ADMINISTRATOR's employment practices Including, but not be limited M, the following: employment, upgrading, demotion or transfer, recruitment or nsvui rr ent advertising, layoff or termination; rates of pay or other forms of compensation; and selection for training, including apprenticeship. ADMINISTRATOR agrees to post In conspicuous pieces, available to employees and applicants for employment, notices seing MM the provision of this nondiscrimination clause. (iii) ADMINISTRATOR will, in all solicitations or advertisements for employees placed by or on behalf of ADMINISTRATOR in pursuit hereof, state Met all qualified applicants will receive consideration for employment without regard to race, religious creed, color, national ongin, ancestry, physical disability, mental dirmixiby, medical wool marital status, sax, age, sexual orientation, sell status as a disabled veteran or veteran of Me Vietnam era_ (Iv) ADMINISTRATOR will send to each labor union or representative of workers with which it has a collective bargaining agreement or other contract or understanding, a ootico advising such labor union or workers' representatives of ADMINISTRATOR's commitment under this section and shall post copies of the notice In conspicuous places available to employees and applicants for employment. 17, Recycling Program. In the event ADMINISTRATOR maintalnsan office or operates a Multty(ies), or is required herein to maintain or operate same, within the Incorporated limits of the City of Fresno, ADMINISTRATOR at its sale cost and expense shall: (i) Immediately establish and maintain a viable and ongoing recycling program, approved by CITY'S Solid Waste Management Division, for each office and facility. Literature describing CITY recycling programs is available from C"'s Solid Waste Management Division and by calling City of Fresno Recycling Ho6ine at (559) 621-1111. (it) Immediately contact CIl Said Waste Management Division at (559) 621-1452 and schedule a free waste audit, and cooperate with such Division In their conduct of the audit for each office and facility. (iii) Cooperate with and demonstrate to Me satisfaction of CITYs Solid Waste Management Division the establishment of Me recycling program In paragraph (i) above and the ongoing maintenance thereof. 18. General Terms. (a) City Authorized Signature. Except as otherwise provided by law, all notices expressly required of CITY within Me body of Mis Agreement and not otherwise specifically provided for shall be effective only if signed by Me Director or hlsMer designee. (b) Professional Skill. It is further mutually understood and agreed by and between the parties hereto that Inasmuch as ADMINISTRATOR represents to CITY that ADMINISTRATOR Is skilled In the profession and shall perform in accordance with the standards of said profession necessary to perform Me Services, CITY relies upon Me skill of ADMINISTRATOR to do and perform such Services In a sklllful manner and ADMINISTRATOR agrees to thus perform the Services. Therefore, any acceptance of such Services by CITY shall not operate as a release of ADMINISTRATOR from said professional standards. (c) Notices. Any notice, request, demand, consent approval or other communication (the 'Nonce ") required or intended to be given to either party under the terms of this Agreement shall be in writing and shell be deemed to be duly given if delivered personally, transmitted by faaimile provided me machine Anne a Most arM time confirmation and the noticing party provides a hat copy by mail, or sent by United States registered or cartified mall with postage prepaid, silver receipt requested addressed to Me party to which the Notice is to be given at the parl address set forth on the signature page of this Agreement or at such other address as the parties may from fime to time designate by written Notice. Unless otherwise specified, a Notice will he asserted given when received it sent realm receipt requested or the date of receipt is otherwise verifiable, but it delivery Is not accepted or veritable, Men delivery will ba deemed on Me earlier of the date that delivery Is refused or ,18 boors after Notice is sent. (d) Binding. Subject to paragraph (e), below, once Mis Agreement Is signed by ail paries, it shall be binding upon, and shall inure to the benefit of, all paries, antl each pates' respective heirs, successors, assigns, businesses, agents, servants, employees and representatives. (a) Assignment This Agreement is pemonal M ADMINISTRATOR and More shall be no assignment, sale or subcmntracting by ADMINISTRATOR of Its rights or obligations under this Agreement without the prior written approval of Me Director or hislher designee. Any attempted assignment, sok or subcontracting by ADMINISTRATOR, its successors or assigns, shall be null and void unless approved In writing by Me Director or hislher designee. ADMINISTRATOR shall not subcontract to any federal agency, instrumentality, bureau or employee without the prior approval of the EDA. (f) Waiver. The wolver by either parry of a breech by theother of any provision of this Agreement shall not constitute a continuing waiver ora waiver of any subsequent breach of either the came or a different provision of this Agreement. No provisions of this Agreement may be waived unless in writing and signed by all pates to this Agreement. Waiver of any one provision herein shall not be Moused to be a walver of any other provision herein. (g) Governing Law and Venue. This Agreement shall be governed by, and construed and enforced In accordance with, Me laws of Me State of California, excluding, however, any conflict of laws rule which would apply the law of another jNsdiction. Venue for purposes of the filing of any action regarding the enforcement or Interpretation of this Agreement and any rights and duties hereunder shall be Fresno Ceunty. C Iffomia. (h) Headings. The section headings In this Agreement are for convenience and reference only and shall not be construed or held in any way to explain, modi y or add to Me interpretation or meaning of me provisions of this Agreement. (i) Severability. The provisions of this Agreement are severable. The Invalidity, or unenforceability, of any one provision in this Agreement shall not affect the other provisions. g) Interpretation. The parties acknowledge Mat Mis Agreement in its frrel form is Me result of the combined efforts of Me parties and Mat, should any provision of this Agreement be round to be ambiguous In any way, such ambiguity shall not be resolved by construing this Agreement in favor of or against either party, but carrier by censtruing Me terms in accordance with Meir generally accepted meaning. (k) Attorneys Fees. If any arbitration, proceeding, controversy, claim, dispute or litigation occurs between Me parties or by EDA to enforce or Interpret any of Me previsions of MIs Agreement or the Program Requirements, Me nonprevisting party will pay to the prevailing party all coats and expenses including, without limitation, reasonable attorneys' fees, incurred therein. Attorneys' fees will include, without limitation, fees Incurred in-house, during a trial of the action, and because of an appeal from any judgment entered In the litigation or proceeding. (1) Precedence of Documents. ADMINISTRATOR will, In all respects, perform Me Services and carry out the terms of this Agreement according to the Program Requirements. The priority or precedence of authority In interpreting and carrying out this Agreement will he as follows: (I) the law and regulations specifically applicable to the RLF Grant program. (ii) Me Program Requirements Issued by the EDA. (til) the guidelines and requirements established by Me CITY (including, without limitation, the Plan), and then (iv) the procedures established by ADMINISTRATOR. (m) Cumulative Remedies. No remarry or election hereunder shall he deemed exclusive but Shall, wherever possible, he cumulative with all other remedies at law or in equity. (n) No ThiN Party Beneficiaries. The rights, interests, duties and obligations defined within this Agreement are Intended for the specific parties hereto as identified In the preamble of this Agreement. Notwithstanding anything stated to the contrary In this Agreement, it is not intended Met any rights or interests in this Agreement benefit or flow to Me interest of any I parties. (o) Time is of the Essence. Time is of the essence of every provision herein contained. (p) Independent Arms. Each party's counsel has revewad this Agreement and contributed to Its drafting, or each party has been given a chance for Its counsel to review and contribute to the drafting. No party hes received, ham the other, any accounting, tax, legal and other ail Each party has refund solely upon the adNce of is own accounting, tax, legal and other advisors. (q) Further Assurances. The parties will sign all further documents and tike any further steps necessary to carry out the intent and purpose of this Agreement. (r) Extent of Agreement The exhibits, and the Program Requirements referenced in this Agreement are by the references incorporated Into and made a part of this Agreement. Each parry acknowledges that they have read and fully understand the contents of this Agreement. This Agreement is me entire Agreement between the parties hereto with respect to me administration of the CftYs EDA RLF and supersedes all prior negctlabons, representations or agreements, either written or oral. This Agreement may rot be modited, amended or atherwlse changed In any manner except by a writing signed by an authorizetl representative of the party against whom enforcement is Bought. FRA IN WRNESS WHEREOF, Me parties have executed this Agreement at Fresno, California, the day and year first above written. CITY OF FRESNO; a California municipa poratlpn By CrajSxJe,>on Eco k Demlopment Department ATTEST: REBECCA E. KLISCH CM1y C Ux By. u � t/sglD9 APPROVED AS TO FORM: JAMES C. SANCHEZ City Attorney Nan S5 A AlgieD Date SaPfor Deputy Addresses Cm: City of Fresno Attention: Director, Economic Development Department 2600 Fresno Street Fresno, CA 93721-3608 Phone: (559)621-8355 FAX (559)48&1078 CEN CAL BUST SSFIN GROUP, a Califo I6 -pr org on By Roe R Garde, Executive Director ADMINISTRATOR: Can Cal Business Finance Group Attention: Robert R. Garcia, Executive Director 5094 North Fruh. Suite 103 Fresno, CA 93711 Phone (559)227-1158 FAX '.(559)227-7926 Attachments: 1. Exhibit A -Scope of Services 2. Extolled B- Insuranoor Requirements 3. Exhibit C - Conflict of Interest Disclosure Form Eahron A SCOPE OF SERVICES Agreement between City of Fresno ('City") and Con Cal Business Finance Group ("Adminlstratal Adrimmiagation ofCI of Fresno thei Loan Find Matti Administrator shall perform the following services: 1. Administer to City of Fresno Revolving Loan Fund (RLP) In compliance with Me EDA Revolving Loan Fund Financial Assistance Award Standard Terms 9 Conditions, dated October 9, 2007 (the 'Terms and Condfifi ; and the RLF Administrative Plan, dated December 16, 2004 and effacthre January 2, 2008 (the 'Plan') (copies annua ). The foregoing, along with the City's 1960 Grant Awl ('Gmi from me U.S. Department of Commerce - Economic Development Administration ('EDA') shall collectively be referred to herein as Me 'Program Requirements.' 2. Service new loans and the existing portfolio of loans under the RLF program. This Includes, but is not limited to, processing, tracking, and accounting for payments; releasing collateral and sadshang liens when the loans are paid off, and pumump appropriate collection eRorks. 3. Marketing Me loan program. This will be done Independently, and in cellestia los with economic development organieatlons, including the City of Fresno. 4. Assisting potential borrowers, providing technical assistance, providing appropriate referrals to other economic development organivadons, accepting loan applications, underwriting the request in accordance well the Plan, and in accordance with federal and State of Caltlomia laws and regulations ('Laws 8 Regi 5. Approving loans, conditionally approving loans, or declining loans, as appropriate, in accordance with the Plan. Laws 8 Rags (including, without limitation, "Prudent Lending Practices" as defined In 13 C.F.R. § 307 8), and generally accepted underwriting principles. 6. Prepare loan documents, perfect all liens, dose all loew, and disburse funs. y. Mail all documents and records In a safe and secure facility. 8. Prepare required reports, correctly, and within required time Ilmds. Currently, this Includes two semHarmual reports (Financial status and Federal Cash Transactions Repormi as of March 31" and September 3041, which are clue to the City by Apol 10' and October 10", respectively. This also Includes all financial and audit reports required pursuant 1013 C.F.R. § 307.14 and by the EDA. 9. Work cooperatively with the City to develop any modifications to that Plan R they become necessary due to changes in laws, regulations, changes dictated by to EDA, or changes mat will make administration of the program more effective. This shall also include making recommendations to City, and responding to questions Page 1 of 1 Mom Cry, about the program and for the purpose of making administration of the program more effective. 10. Operate no RLF in accordance with generally accepted accounting principles. 11. Provide City with the following written cartmcation (dated and signed under penalty of pndury under Me laws of the State of California) prior to conducting loan activities and disbursement of any RLF funds- Gen Cal Business Finance Group certifies Mat standard RLF loan documents reasonably necessary for landing are in place and Nese documents have been reviewed by our legal counsel for adequacy and compliance with the EGA Revolving Loan Fund Financial Assistance Awad Standard Terms 8 Conditions, could October 9, 2007, and applicable State and local laws. 12. Submit a completed Farm SF -LLL. 'Discloture W Lobbying Activities' In accordance with the Terms and Conditions and 31 US.C. § 1352, incuding implementing regulations found at 15 C.F.R. part 28, 'New Restrictions on Lobbying.' 13. Submit a completed Form 06512, 'Celcations Regarding Defaonen6 suspension, Ineligibility and Voluntary Exclusion—Lower Tier Covered Transactions and Lobbying' in accordance with the Terns and Conditions. 14. To the extent consistent with Me geographic eligibility requirements In the. Program Requirements, Administrator will administer Me RLF Grant to sena businesses within the Incorporated limits of the City, as de0netl and amended by City and approved! by Me EDA. 15. Administrator will Include, as pad of Its loan mi process, the City's threshold loan eligibility requirements, as Me City may revise the requirements ham time to time, with notice to Administrator. Currently, Me City's threshed requirements include Me creation and retention of jobs and reasonable likelihood of business success. 16. Administrator will evaluate each loan appllcation to decide whether the proposed bonowar and proposed loan are eligible under Me Program Requirements. 17. Administrator will set up, to the extent practicable and to the extent within the Program Requirements, a loan application process that includes, without shunter, each of the following: (i) An Administrator ban officer will meet with each loan applicant (proposed borrower) and explain the RLF and Administrators role in helping the applicant. 01) It Me applicant and the loan proposal generally meet the City's threshold eligibility requirements and! the loan criteria that Administrator establishes. Administrator will give the applicant an Information checklist The checklist will outline the format and the crow in which Me applicant must assemble information for the loan applicant, and will contain Me specific Page 2 of 2 Program Requirements governing Administrators gram and administration of the proposed RLF loan. (iii) Administrator's lending practices and procedures will incorporate commercial underwriting standards, consistent with lending practices generally accepted as prudent for public loan programs, and as outlined in the RLF Plan Guidelines. Loan documentation, terms, and conditions will comply with the Program Requirements. (iv) An Administrator staff loan committee will prepare the ban write-up and present It to the Administrator Loan Commiftee or Board of Directors. FBoard) only when it Is prepared to recommend approve, Staff presentations to Pre Loan Committee or Boats will include each of the following: • Summary of Loan • Detalls of Loan Request • Analysis of the Business • Market Analysis • Financial Analysis Proforma Statements Management Assessment • Recommendation 18. Administrator will net up, to the extent practicable and to the extent consistent with the Program Requirements, the following procedures to monitor loans It grams under the RLF. (i) Administrator will require borrowers to provide periodic financial statements, prepared In-house by the borrower, and will require the borrower to provide CPA -prepared financial statements and tax returns at least annually to Administrator. (11) Administrator will review, at least annually, each borrowers business operations to decide whether the borrower is complying with the loan agreements. This review will include, without limitation, borrower's compliance with working capital and Inventory levels, draws from business operations and capital, tumover, and liquidity ratios, and borrower s maintenance of required documents, such as life and 'all risk' insurance pollciesoinders, assignment of rents, landlord waivers, and such. Adminlstmtar will maintain a computer calendaring and backing system to help in carrying out this obligation- Administrator will follow up compliance requirements, as needed, with each borrower by telephone and confirming letters. If Administrator identifies compliance emblems, and after notice to the borroweq Me borrower does not cure the compliance problem, Administrator will request a special meeting with the borrower (generally at Administrator offices). (til) In the event Administrator is making loans to a borrower under both the RLF arts another program, copies of all application documents including, Page 3 of 3 without limitatlan, loan applications and finandal statements, shall be Included in dre RLF file. Copies of all updated financial statements prepared during the sar ming period shall also be Included in the RLF file. 19. Admlmstretor will maintain all RLF Grant funds and all repayments of ban Principal In a segregated RLF account. As borrowers repay loans. Administrator will deposit the repaid principal and RLF Income into the segregated account as part of the mwMng bonowing base to make additional loans, all as set forth In the Program Requirements. Page 4 of 4 Exhibit B INSURANCE REQUIREMENTS Agreement between City of Fresno (•City') and Can Cal Business Finance Group ("Administrator') Administration of CIN of Fresno Revolving Loan Fund PRQIEC all Minimum Scope of Insurance Coverage shall ba at least as broad as: 1. The most current version of Insurance Services Otgce (ISO) Commercial General Liability Coverage Food CG 00 01, which shall include Insurance for "bodily injury." "property damage' and 'personal and advertising may with coverage for premises and operations, products and completed operations, and contractual liability. 2. AcrossCompensation insurance as required by the California Labor Code and Employer's Liability Insurance. 3. Professional Liability (Errors and Omissions) Insurance appropriate to Administrators profession. 4. Commercial Crime insurance, which shall include coverage for employee theft. (In lieu of Commercial Come insurance, a Fidelity Bond may be provided in accordance with the Agreement.) Minimum Limits of Insurance Administrator shall annual limits of liability of not less. than: 1. General Uablliy: $1,000,000 peroccurrance for bodily Injury and property damage $1,000,000 per occurrence forpersonal and advertising Injury $2,000,000 aggregate for products and completed operations $2,000,000 general aggregate applying sepan aly b the work pedmmed under the Agreement 2, Employer's Liability: $1,W0.000 each accident far badly Injury $1,000;000 disease each employee $1,00,000 disease potty limit 3. Professional Liabllity(Erl and Omissions) $1,00, WO per claimloocumence $2,00,00 policy aggregate Page 1 of 1 4. Crime Liability: $880,00 Umbrella or Excess Insurance In the event Administrator purchases an Umbrella or Excess insurance placy(ias) to meet May -Minimum Limits of Insurance; this insurance pollcy(ies) shall 'Follow tocol and afford no Was beverage gran the primary Insurance policy(ies). Deductibles and Self-insured RaterNons Administrator shall be responsible for payment of any deductibles contained in any Insurance polices required hereunder and Administrator shall also be responsible for payment of any set - insured retentions. Any deductibles or s ffinsured retentions must be declared to, and approved by, Me Ciry's Risk Manager or his/her designee. At Me option of me City's Risk Manager or hislber design", eimer (1) the insurer shell reduce or eliminate such deductibles or self-insured retentlans as respects Cry, tis officers, officials, employees, agents and volunteers; or (li) Administrator shall provide a financial guarantee, satisfactory to Ciry's Risk Manager or his/her designee, guaranteeing Payment of losses and related investigations, claim administration and defense expenses. At no time shall City be responsible for Me Payment of any deductibles or self -Insured retentions. Other Insurance Previsions The Oenersl Liability Insurance Policy Is to contain, or be endorsed to contain, the following provlslonsr 1. City, Its officers, officals, employees, agents and volunteers are to be covered as additional insureds. 2. The coverage shall contain no special limitations on the scope of pretectlan adopted to City, Its officers, officials, employees, agents and volunteers. 3. Administrator'a Insurance coverage shall be primary and no contribution shall be required of City, The Workers Compensation insurance ockcv is to contain, or be endorsed to contain, the following provlsion: Administrator and Its Insurer shall waive any right of submgabon against City, its omcars, officials, employees, agents and authorized volunteers.. If the Professional L' b! fErmis and O )"Insurance, policyIs written on a claims -made form. 1. The "Retro Date' must be shown, and must be before Me effective date of the Agreement or the commencement of wmk by Administrator, 2. Insurance must be maintalned and evidence of insurance must be provided for at least 5 years after any expiration or temilre fion of the Agreement or. In the alternative, the policy shall be endorsed to provide not less than a 5 -year Page 2 of 2 discovery period. This requirement shall survive expiration or termination of the Agreement. 3. If coverage Is canceled or non -renewed, and not replaced with another daims- made policy form with a "Retro Date prior to the effective date of the Agreement, Administrator must purchase 'extendetl reporting" coverage for a minimum of 5 years following the expiration or termination of to Agreement. 4. A copy of the claims reporting requirements must be submitted to City for review. 5. These requirements shall survive expiration or termination aMe Agreement. The Commercial CrimpI' shalt contain a Blanket Client Property — Off Premises Endorsement and Joint Loan Payee ErMorcement in favor of City. All_pglicies of nuance required hereunder shell be endorsed to provide Nal the coverage shall rat be cancelled non -renewed, reduced In coverage or in limits except after W calendar day written notice by certified mail, return receipt requested, has been given to City. upon Issuance by to insurer, broker, or agent of a notice of cancellation, non-anerval, or reduction in coverage or In limits, Administrator shall furnish City with a new repocate and applicable endorsements for such policy(iss), in Me event any policy is due to expire during the work to be parformed far City, Administrator shall provide a new cumbrous. and applicable endorsements, evidencing renewal of such policy not less tan 15 calendar days prior to the expiration date of the expiring policy. Acceptability of Insurers All policies of Insurance required hereunder shall be placed with an Insurance campenytiea) admitted by the California Insurance Commissioner to do business in the State of California and rated not less then -A-VII' In Best's Insurance Rating Guide; or authorized by Cbys Risk Manager. Verification of Coverage Administrator shall furnish City wit all cerfifcate(s) and applicable endorsements effecting coverage required hereunder. All certificates and applicable endorsements are to he received and approved by to City's Risk Manager or Mother designee prior to Citys execution of the Agreement and before work commences. Page 3 of 3 Exhibit C DISCLOSURE OF CONFLICT OF INTEREST Administration of City ofF Rei Loan Fund PROJECT TITLE Explanation: D Additional pages) attached. M �Igin Robert R. Garcia (name) Can Cal Business Finance Group (omnpany) 5094 N. Fruit Avenue X103 (address) Fresno, CA 93711 (dty statezip) YES' NO 1 Are you currently In litigation with the City of Fresno or any of its ❑ ❑' agents? 2 Oo you represent any grrn, organization or person who is In ❑ [(� litigation with the City of Fresno? 3 Do you currently represent or perform work for any Giants who do ❑ [� business with the City Of Fresno? 4 Are you or any of your Cirripals, managers or professionals, Owners or investors In a business which does business with the ❑ City Of Fresno, or in a business which is In litigation with the City of Fresno? 5 Are you or any of your principals, managers or professionals. Relate! by blood or marriage to any qty of Fresno emplayee who ❑ 1;4-� has any signAlcant role in the subject matter of Mls service] 6 Do you or any of your subcontractors hats, or expect to have, any interest, direct or Indirect. In any other contract In cc cbo with L1this project? ' R the answer to any auastion is yes, please II w. Explanation: D Additional pages) attached. M �Igin Robert R. Garcia (name) Can Cal Business Finance Group (omnpany) 5094 N. Fruit Avenue X103 (address) Fresno, CA 93711 (dty statezip)