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HomeMy WebLinkAboutFresno Economic Opportunities Commission Inc Agreement For Admin Of COF Small Business Relieft Loan To Grant Prog 4.3.2020 AGREEMENT FOR ADMINISTRATION OF CITY OF FRESNO SMALL BUSINESS RELIEF LOAN TO GRANT PROGRAM THIS AGREEMENT is made and entered into effective the J day of April, 2020, (Effective Date), by and between the CITY OF FRESNO, a California municipal corporation (City), and Fresno Economic Opportunities Commission, Inc., a California Non-profit Corporation, through its subsidiary, Access Plus Capital (Administrator). RECITALS A. On March 13, 2020, President Trump declared a National Emergency concerning the Novel Coronavirus Disease (COVID-19) outbreak. B. City desires to establish a loan fund to assist small businesses that have suffered lost revenues as a result of business closures and/or reduction in services as a result of the COVID-19 outbreak. C. The City shall contribute $750,000 to create a Small Business Relief Loan to Grant Program (Program). D. Program funds may only be lent to businesses that meet Program requirements, and any guidelines that the City has established, and the administrator may establish under this agreement that are consistent with the Program requirements. E. Administrator is engaged in the business of furnishing technical and expert services as an administrator of loan programs and hereby represents that it desires to and is professionally and legally capable of performing the services called for by this Agreement. F. This Agreement is entered into by the City Manager pursuant to the emergency powers granted under the Fresno Municipal Code. G. This Agreement will be administered for the City by its Economic Development Department Director (Director) or designee. AGREEMENT NOW, THEREFORE, in consideration of the foregoing and of the covenants, conditions, and premises hereinafter contained to be kept and performed by the respective parties, it is mutually agreed as follows: 1. Services. City engages Administrator to provide the services set forth in Exhibit A and to market and administer the Program that complies with the City's guidelines set forth herein (collectively, the Services). As of the Effective Date, the balance available in the Program fund is $750,000 contributed by City which shall be used exclusively for small businesses within the City. 2. Compensation. City will not pay any compensation to Administrator, and will not reimburse it for any administrative, marketing, or other costs associated with its Services. The loans will be zero percent interest, with no application fees, packaging fees, origination fees, or service fees to be paid by City or by the borrower. Page 1 of 9 3. Term of Agreement: Suspension and Termination. (a) The term of this Agreement shall begin on the Effective Date, and terminate June 30, 2021, unless extended by mutual agreement of the parties, and subject to any earlier termination in accordance with this Agreement. (b) The City may terminate this Agreement without cause by giving the other party sixty days' prior written notice. Upon written notice to the Administrator, City may suspend new lending activity by Administrator pending Administrator's taking corrective actions as specified by the Director. Either party may terminate this Agreement with cause after giving the other party prior written notice and at least thirty days to cure the default. Upon expiration or early termination of this Agreement by City without cause, Administrator shall aid the City in continuing, uninterruptedly, the requirements of this Agreement, by continuing to perform on a temporary basis, when specifically requested to do so in writing by the Director, for a specified term not to exceed twelve months. (c) On expiration or termination of this Agreement, any uncollected principal and interest loan funds, any undisbursed Program funds will be paid or assigned to the City. Unless modified by mutual agreement of the parties, on expiration or termination of the Agreement, Administrator will return all documents to City. (d) If Administrator fails to perform any obligation under this Agreement, and does not cure the failure within thirty calendar days after City gives written notice of it, the failure will be a material breach of this Agreement. The City may after that immediately terminate this Agreement, and exercise any right, remedy, or privilege available to it under this Agreement, at law or in equity. 4. Compliance with all Laws and Regulations. Administrator will perform the Services in compliance with all applicable laws, ordinances, regulations, and guidelines, as existing, and after this amended, whether federal, state, regional, or by local administrative or regulatory agencies. 5. Books and Records. Administrator will maintain segregated accounts, books, and records for the Program, and will not combine any accounts, books, or records with those 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 four years after this Agreement terminates, or four years after each loan matures or is paid, whichever is later. This section shall survive expiration or termination of this Agreement. 6. Audits and Reports. Administrator will comply and be solely responsible for complying with reporting and audits as may be required. Upon City's request, Administrator shall immediately make available and give City staff access to Administrator's Program books, records, loan files, financial statements, and computer or other electronic records. City will conduct any audits during normal business hours. Audits performed by outside Certified Public Accountants will be at the expense of the requesting party. Any monies determined to be owed to the City's Program shall bey paid promptly by Administrator. Page 2of9 7. Independent Contractor. In the furnishing of the Services, Administrator is acting solely as an independent contractor. Neither Administrator, nor any of its officers, agents, or employees shall be deemed an officer, agent, employee, joint venturer, 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. 8. Indemnification. City shall indemnify, hold harmless and defend Administrator and each of its officers, officials, employees, agents and volunteers from any and all loss, liability, fines, penalties, forfeitures, costs and damages (whether in contract, tort or strict liability, including but not limited to personal injury, death at any time and property damage) incurred by Administrator, City or any other person, and from any and all claims, demands and actions in law or equity (including attorney's fees and litigation expenses), arising or alleged to have arisen directly or indirectly from the negligent or intentional acts or omissions, or willful misconduct of City or any of its officers, officials, employees, agents or volunteers in the performance of this Agreement; provided nothing herein shall constitute a waiver by City of governmental immunities including California Government Code section 810 et seq. Administrator shall indemnify, hold harmless and defend City and each of its officers, officials, employees, agents and volunteers from any and all loss, liability, fines, penalties, forfeitures, costs and damages (whether in contract, tort or strict liability, including but not limited to personal injury, death at any time and property damage) incurred by the City, Administrator or any other person, and from any and all claims, demands and actions in law or equity (including attorney's fees and litigation expenses), arising or alleged to have arisen directly or indirectly from the negligent or intentional acts or omissions, or willful misconduct of Administrator or any of its officers, officials, employees, agents or volunteers in the performance of this Agreement; provided nothing herein shall constitute a waiver by Administrator of governmental immunities including California Government Code section 810 et seq.. In the event of concurrent negligence on the part of City or any of its officers, officials, employees, agents or volunteers, and Administrator or any of its officers, officials, employees, agents or volunteers, the liability for any and all such claims, demands and actions in law or equity for such losses, fines, penalties, forfeitures, costs and damages shall be apportioned under the State of California's theory of comparative negligence as presently established or as may be modified hereafter. This section shall survive termination or expiration of this Agreement. 9. 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 respect on the basis of race, religious creed, color, national origin, ancestry, physical disability, mental disability, medical condition, marital status, sex, age, sexual orientation, or ethnicity. Page 3 of 9 10. General Terms. (a) City Authorized Signature. Except as otherwise provided by law, all notices expressly required of City within the body of this Agreement, and not otherwise specifically provided for, shall be effective only if signed by the Director or designee. (b) Notices. Any notice, request, demand, consent, approval or other communication (the "Notice") required or intended to be given to either party under the terms of this Agreement shall be in writing and shall be deemed to be duly given if delivered personally, transmitted by electronic mail provided the noticing party provides a hard copy by mail, or sent by United States registered or certified mail with postage prepaid, return receipt requested, addressed to the party to which the Notice is to be given at the party's address set forth on the signature page of this Agreement or at such other address as the parties may from time to time designate by written Notice. Unless otherwise specified, a Notice will be deemed given when received if sent return receipt requested or the date of receipt is otherwise verifiable, but if delivery is not accepted or verifiable, then delivery will be deemed on the earlier of the date that delivery is refused or 48 hours after Notice is sent. (c) Binding. Subject to paragraph (d), below, once this Agreement is signed by all parties, it shall be binding upon, and shall inure to the benefit of, all parties, and each party's respective heirs, successors, assigns, transferees, agents, servants, employees, and representatives. (d) Assignment. This Agreement is personal to Administrator and there shall be no assignment, sale or subcontracting by Administrator of its rights or obligations under this Agreement without the prior written approval of the Director or designee. Any attempted assignment, sale or subcontracting by Administrator, its successors or assigns, shall be null and void unless approved in writing by the Director or designee. (e) Waiver. The waiver by either party of a breach by the other of any provision of this Agreement shall not constitute a continuing waiver or a waiver of any subsequent breach of either the same or a different provision of this Agreement. No provisions of this Agreement may be waived unless in writing and signed by all parties to this Agreement. Waiver of any one provision herein shall not be deemed to be a waiver of any other provision herein. (f) Governing Law and Venue. This Agreement shall be governed by, and construed and enforced in accordance with, the laws of the State of California, excluding, however, any conflict of laws rule which would apply the law of another jurisdiction. 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 County, California. (g) Headings. The section headings in this Agreement are for convenience and reference only and shall not be construed or held in any way to Page 4of9 explain, modify or add to the interpretation or meaning of the provisions of this Agreement. (h) 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. (i) Interpretation. The parties acknowledge that this Agreement in its final form is the result of the combined efforts of the parties and that, should any provision of this Agreement be found to be ambiguous in any way, such ambiguity shall not be resolved by construing this Agreement in favor of or against either party, but rather by construing the terms in accordance with their generally accepted meaning. 0) Cumulative Remedies. No remedy or election hereunder shall be deemed exclusive but shall, wherever possible, be cumulative with all other remedies at law or in equity. (k) No Third 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 that any rights or interests in this Agreement benefit or flow to the interest of any third parties. (1) Time is of the Essence. Time is of the essence of every provision herein contained. (m) Further Assurances. The parties will sign all further documents and take any further steps necessary to carry out the intent and purpose of this Agreement. (n) Extent of Agreement. The exhibit is incorporated into and made a part of this Agreement. Each party acknowledges that they have read and fully understand the contents of this Agreement. This Agreement is the entire Agreement between the parties hereto with respect to the administration of the City's Program and supersedes all prior negotiations, representations or agreements, either written or oral. This Agreement may not be modified, amended, or otherwise changed in any manner except by a writing signed by an authorized representative of the party against whom enforcement is sought. [SIGNATURE PAGE TO FOLLOW] Page 5 of 9 IN WITNESS WHEREOF, the parties have executed this Agreement at Fresno, California, the day and year first above written. City of Fresno, Fresno Economic Opportunities A California2­. pa/erporation Commission, Inc., a California Non-profit Corporation By: W City Manager �' By: APP COVED AS TO FORM: DOUGLAS T. SLOAN Name: City Attorney, Title: By: (If corporation or LLC., Board Chair, �ur(iiedisian-Favini Dated Pres. or Vice Pres.) Assistant City Attorney a ` ATTEST: _ YVONNE SPENCE, CRM MMC Name: i City Clerk , rr . Title: � By: (If corporation or LLC., CFO, Da a Treasurer, Secretary or Assistant Deputy �`��"r�' ��K �� Secretary) Addresses: y/3�ZU CITY: ADMINISTRATOR: City of Fresno Fresno Economic Opportunities Attention: Lupe Perez Commission Economic Development Director Attention: Executive Director 2600 Fresno Street 1920 Mariposa Street, Suite 300 Fresno, CA 93721 Fresno, CA 93721 Phone: (559) 621-8371 Phone: (559) 263-1000 Attachments: Exhibit A - Scope of Services Page 6 of 9 Exhibit A SCOPE OF SERVICES Administrator shall perform the following services: 1. Administer the City of Fresno Small Business Relief Loan to Grant Program ("Program") as follows: (i) The following loans shall be available: a. $5,000 loan for an eligible small business with five or fewer employees b. $10,000 loan for eligible small businesses with between six and twenty-five employees (ii) To be eligible a small business must: a. Have a valid City of Fresno business license filed prior to March 4, 2020; b. Have been conducting business as of February 15, 2020; C. Not have any unpaid judgments or tax liens. d. Have no CUP violations (iii) City and Administrator shall jointly develop additional eligibility criteria based on SBA guidelines. (iv) Administrator shall make loan applications available as soon as possible. (v) Loan recipients shall be randomly selected among qualified applicants. (vi) Loan awards shall begin by April 17, 2020. (vii) Loans shall be forgiven after one year of continuous operation by the business, pursuant to the Program guidelines. (viii) Program loan funds shall be distributed equitably within the City. 2. Service loans under the Program. This includes, but is not limited to, processing, tracking, collecting, and accounting for payments; releasing collateral and satisfying liens when the loans are paid off; and pursuing appropriate collection efforts. 3. Marketing the loan program. This will be done independently, and in collaboration with economic development organizations, including the City of Fresno. 4. Assisting potential borrowers, providing technical assistance, providing appropriate referrals to the City of Fresno and other economic development organizations, accepting loan applications, underwriting the request in accordance with the this agreement, and in accordance with federal and State of California laws and regulations ("Laws & Regs"). Page 7 of 9 5. Approving loans, conditionally approving loans, or declining loans, as appropriate, in accordance with this Agreement, Laws & Regs (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, close all loans, and disburse funds. 7. Maintain all documents and records in a safe and secure facility. 8. Prepare required reports, correctly, and within required time limits. 9. Work cooperatively with the City to develop any modifications to the Program if they become necessary due to changes in laws, regulations, or changes that will make administration of the program more effective. This shall also include making recommendations to City, and responding to questions from City, about the program and for the purpose of making administration of the program more effective. 10. Operate the Program in accordance with generally accepted accounting principles. 11. Administrator will include, as part of its loan review process, the City's threshold loan eligibility requirements, as the City may revise the requirements from time to time, with notice to Administrator. 12. Administrator will evaluate each loan application to decide whether the proposed borrower and proposed loan are eligible under the Program Requirements as set forth in this Exhibit A. 13. Administrator will set up a loan application process that includes, without limitation, each of the following: (i) Administrator will give the applicant an information checklist containing the specific Program Requirements of the proposed Program loan. (ii) Administrator's lending practices and procedures will incorporate commercial underwriting standards, consistent with lending practices generally accepted as prudent for public loan programs. Loan documentation, terms, and conditions will comply with the Program Requirements. 14. Administrator will set up, in consultation with City, procedures to monitor loans it grants under the Program. 15. Administrator will maintain all Program funds and all repayments of loan principal in a segregated Program account. As borrowers repay loans, Administrator will deposit the repaid principal and Program income into the segregated account. 16. Administrator shall report the filial distribution of loans to the City of Fresno's Economic Development Director; reporting shall consist of the Page 8 of 9 total number of applications with a copy of all the applications received with the final loan distribution for each Recipient. Page 9 of 9