HomeMy WebLinkAboutCDC Small Business Finance; 2020-08-18;City Attorney Approved Version 6/12/18
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AGREEMENT FOR SMALL BUSINESS LOAN SERVICES
CDC SMALL BUSINESS FINANCE
THIS AGREEMENT is made and entered into as of the 18th_ day of
_____August__________, 2020 (“Effective Date”), by and between the CITY OF CARLSBAD, a
municipal corporation ("City"), and CDC Small Business Finance, a non-profit, private
organization ("Contractor").
RECITALS
A. City requires the professional services of a non-profit contractor that is experienced
in providing small business lending services.
B. Contractor has the necessary experience in providing professional services and
advice related to small business lending.
C. Selection of Contractor is expected to achieve the desired results and efficiencies
in an expedited fashion.
D. Contractor has submitted a proposal to City and has affirmed its willingness and
ability to perform such work.
NOW, THEREFORE, in consideration of these recitals and the mutual covenants
contained herein, City and Contractor agree as follows:
1. SCOPE OF WORK
City retains Contractor to perform, and Contractor agrees to render, those services (the
"Services") that are defined in attached Exhibit "A," which is incorporated by this reference in
accordance with this Agreement’s terms and conditions.
2. STANDARD OF PERFORMANCE
While performing the Services, Contractor will exercise the reasonable professional care and skill
customarily exercised by reputable members of Contractor's profession practicing in the
Metropolitan Southern California Area, and will use reasonable diligence and best judgment while
exercising its professional skill and expertise.
3. TERM
The initial term of this Agreement will be for a period of three (3) years from the Effective Date.
The City Manager may extend the Agreement for up to an additional one (1) year period.
4. TIME IS OF THE ESSENCE
Time is of the essence for each and every provision of this Agreement.
5. COMPENSATION
The total fee payable for the Services to be performed during the Agreement term shall not exceed
Three Hundred and Fifty Thousand Dollars ($350,000). No other compensation for the Services
will be allowed except for items covered by subsequent amendments to this Agreement. The City
reserves the right to withhold a ten percent (10%) retention until City has accepted the work and/or
Services specified in Exhibit "A."
6. STATUS OF CONTRACTOR
Contractor will perform the Services in Contractor's own way as an independent contractor and
in pursuit of Contractor's independent calling, and not as an employee of City. Contractor will be
under control of City only as to the result to be accomplished, but will consult with City as
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necessary. The persons used by Contractor to provide services under this Agreement will not be
considered employees of City for any purposes.
The payment made to Contractor pursuant to the Agreement will be the full and complete
compensation to which Contractor is entitled. City will not make any federal or state tax
withholdings on behalf of Contractor or its agents, employees or subcontractors. City will not be
required to pay any workers' compensation insurance or unemployment contributions on behalf
of Contractor or its employees or subcontractors. Contractor agrees to indemnify City within thirty
(30) days for any tax, retirement contribution, social security, overtime payment, unemployment
payment or workers' compensation payment which City may be required to make on behalf of
Contractor or any agent, employee, or subcontractor of Contractor for work done under this
Agreement. At the City’s election, City may deduct the indemnification amount from any balance
owing to Contractor.
7. SUBCONTRACTING
Contractor will not subcontract any portion of the Services without prior written approval of City,
except as explicitly outlined in the Agreement. If Contractor subcontracts any of the Services,
Contractor will be fully responsible to City for the acts and omissions of Contractor's subcontractor
and of the persons either directly or indirectly employed by the subcontractor, as Contractor is for
the acts and omissions of persons directly employed by Contractor. Nothing contained in this
Agreement will create any contractual relationship between any subcontractor of Contractor and
City. Contractor will be responsible for payment of subcontractors. Contractor will bind every
subcontractor and every subcontractor of a subcontractor by the terms of this Agreement
applicable to Contractor's work unless specifically noted to the contrary in the subcontract and
approved in writing by City.
8. OTHER CONTRACTORS
The City reserves the right to employ other Contractors in connection with the Services.
9. INDEMNIFICATION
Each party shall indemnify, defend, protect, hold harmless, and release the other, its officers,
agents, and employees, from and against any and all claims, loss, proceedings, damages, causes
of action, liability, costs, or expense (including attorneys’ fees and witness costs) arising from or
in connection with, or caused by any act, omission, or negligence of such indemnifying party or
its agents, employees, contractors, subcontractors, or invitees. This indemnification obligation
shall not be limited in any way by any limitation on the amount or type of damages or
compensation payable to or for the indemnifying party under workers’ compensation acts,
disability benefit acts, or other employee benefit acts. This indemnity provision survives the
Agreement. Contractor agrees to indemnify and hold harmless the City and its officers, officials,
employees and volunteers from and against all claims, damages, losses and expenses including
attorneys fees arising out of the performance of the work described herein caused by any
negligence, recklessness, or willful misconduct of the Contractor, any subcontractor, anyone
directly or indirectly employed by any of them or anyone for whose acts any of them may be liable.
10. INSURANCE
Contractor will obtain and maintain for the duration of the Agreement and any and all
amendments, insurance against claims for injuries to persons or damage to property which may
arise out of or in connection with performance of the services by Contractor or Contractor’s
agents, representatives, employees or subcontractors. The insurance will be obtained from an
insurance carrier admitted and authorized to do business in the State of California. The insurance
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carrier is required to have a current Best's Key Rating of not less than "A-:VII"; OR with a surplus
line insurer on the State of California’s List of Approved Surplus Line Insurers (LASLI) with a rating
in the latest Best’s Key Rating Guide of at least “A:X”; OR an alien non-admitted insurer listed by
the National Association of Insurance Commissioners (NAIC) latest quarterly listings report.
10.1 Coverage and Limits.
Contractor will maintain the types of coverage and minimum limits indicated below, unless the
Risk Manager or City Manager approves a lower amount. These minimum amounts of coverage
will not constitute any limitations or cap on Contractor's indemnification obligations under this
Agreement. City, its officers, agents and employees make no representation that the limits of the
insurance specified to be carried by Contractor pursuant to this Agreement are adequate to
protect Contractor. If Contractor believes that any required insurance coverage is inadequate,
Contractor will obtain such additional insurance coverage, as Contractor deems adequate, at
Contractor's sole expense. The full limits available to the named insured shall also be available
and applicable to the City as an additional insured.
10.1.1 Commercial General Liability (CGL) Insurance. Insurance written on an
“occurrence” basis, including personal & advertising injury, with limits no less than $2,000,000 per
occurrence. If a general aggregate limit applies, either the general aggregate limit shall apply
separately to this project/location or the general aggregate limit shall be twice the required
occurrence limit.
10.1.2 Automobile Liability. (if the use of an automobile is involved for Contractor's work
for City). $2,000,000 combined single-limit per accident for bodily injury and property damage.
10.1.3 Workers' Compensation and Employer's Liability. Workers' Compensation limits as
required by the California Labor Code. Workers' Compensation will not be required if Contractor
has no employees and provides, to City's satisfaction, a declaration stating this.
10.1.4 Professional Liability. Errors and omissions liability appropriate to Contractor’s
profession with limits of not less than $2,000,000 per claim. Coverage must be maintained for a
period of five years following the date of completion of the work.
10.2 Additional Provisions. Contractor will ensure that the policies of insurance required under
this Agreement contain, or are endorsed to contain, the following provisions:
10.2.1 The City will be named as an additional insured on Commercial General Liability
which shall provide primary coverage to the City.
10.2.2 Contractor will obtain occurrence coverage, excluding Professional Liability, which
will be written as claims-made coverage.
10.2.3 This insurance will be in force during the life of the Agreement and any extensions
of it and will not be canceled without thirty (30) days prior written notice to City sent by certified
mail pursuant to the Notice provisions of this Agreement.
10.3 Providing Certificates of Insurance and Endorsements. Prior to City's execution of this
Agreement, Contractor will furnish certificates of insurance and endorsements to City.
10.4 Failure to Maintain Coverage. If Contractor fails to maintain any of these insurance
coverages, then City will have the option to declare Contractor in breach or may purchase
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replacement insurance or pay the premiums that are due on existing policies in order to maintain
the required coverages. Contractor is responsible for any payments made by City to obtain or
maintain insurance and City may collect these payments from Contractor or deduct the amount
paid from any sums due Contractor under this Agreement.
10.5 Submission of Insurance Policies. City reserves the right to require, at any time, complete
and certified copies of any or all required insurance policies and endorsements.
11. BUSINESS LICENSE
Contractor will obtain and maintain a City of Carlsbad Business License for the term of the
Agreement, as may be amended from time-to-time.
12. ACCOUNTING RECORDS
Contractor will maintain complete and accurate records with respect to costs incurred under this
Agreement. All records will be clearly identifiable. Contractor will allow a representative of City
during normal business hours to examine, audit, and make transcripts or copies of records and
any other documents created pursuant to this Agreement. Contractor will allow inspection of all
work, data, documents, proceedings, and activities related to the Agreement for a period of three
(3) years from the date of final payment under this Agreement.
13. OWNERSHIP OF DOCUMENTS
All work product produced by Contractor or its agents, employees, and subcontractors pursuant
to this Agreement is the property of City. In the event this Agreement is terminated, all work
product produced by Contractor or its agents, employees and subcontractors pursuant to this
Agreement will be delivered at once to City. Contractor will have the right to make one (1) copy
of the work product for Contractor’s records.
14. COPYRIGHTS
Contractor agrees that all copyrights that arise from the services will be vested in City and
Contractor relinquishes all claims to the copyrights in favor of City.
15. NOTICES
The name of the persons who are authorized to give written notice or to receive written notice on
behalf of City and on behalf of Contractor under this Agreement.
For City For Contractor
Name David Graham Name Robert Villarreal
Title Chief Innovation Officer Title Executive Vice President
Department
Office of Innovation and
Economic Development Address CDC Small Business Finance
2448 Historic Decatur Rd #200
San Diego, CA 92106
Address 1200 Carlsbad Village Drive Phone No. 619-234-8652
Carlsbad, CA 92008 Email rvillarreal@cdcloans.com
Phone No. 760-434-5992
Each party will notify the other immediately of any changes of address that would require any
notice or delivery to be directed to another address.
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16. CONFLICT OF INTEREST
Contractor shall file a Conflict of Interest Statement with the City Clerk in accordance with the
requirements of the City of Carlsbad Conflict of Interest Code. The Contractor shall report
investments or interests in all categories.
Yes No
17. GENERAL COMPLIANCE WITH LAWS
Contractor will keep fully informed of federal, state and local laws and ordinances and regulations
which in any manner affect those employed by Contractor, or in any way affect the performance
of the Services by Contractor. Contractor will at all times observe and comply with these laws,
ordinances, and regulations and will be responsible for the compliance of Contractor's services
with all applicable laws, ordinances and regulations.
Contractor will be aware of the requirements of the Immigration Reform and Control Act of 1986
and will comply with those requirements, including, but not limited to, verifying the eligibility for
employment of all agents, employees, subcontractors and consultants whose services are
required by this Agreement.
18. DISCRIMINATION AND HARASSMENT PROHIBITED
Contractor will comply with all applicable local, state and federal laws and regulations prohibiting
discrimination and harassment.
19. DISPUTE RESOLUTION
If a dispute should arise regarding the performance of the Services the following procedure will
be used to resolve any questions of fact or interpretation not otherwise settled by agreement
between the parties. Representatives of Contractor or City will reduce such questions, and their
respective views, to writing. A copy of such documented dispute will be forwarded to both parties
involved along with recommended methods of resolution, which would be of benefit to both
parties. The representative receiving the letter will reply to the letter along with a recommended
method of resolution within ten (10) business days. If the resolution thus obtained is unsatisfactory
to the aggrieved party, a letter outlining the disputes will be forwarded to the City Manager. The
City Manager will consider the facts and solutions recommended by each party and may then opt
to direct a solution to the problem. In such cases, the action of the City Manager will be binding
upon the parties involved, although nothing in this procedure will prohibit the parties from seeking
remedies available to them at law.
20. TERMINATION
In the event of the Contractor's failure to prosecute, deliver, or perform the Services, City may
terminate this Agreement for nonperformance by notifying Contractor by certified mail of the
termination. If City decides to abandon or indefinitely postpone the work or services contemplated
by this Agreement, City may terminate this Agreement upon written notice to Contractor. Upon
notification of termination, Contractor has five (5) business days to deliver any documents owned
by City and all work in progress to City address contained in this Agreement. City will make a
determination of fact based upon the work product delivered to City and of the percentage of work
that Contractor has performed which is usable and of worth to City in having the Agreement
completed. Based upon that finding City will determine the final payment of the Agreement.
Either party upon tendering thirty (30) days written notice to the other party may terminate this
Agreement. In this event and upon request of City, Contractor will assemble the work product and
X
X
X
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put it in order for proper filing and closing and deliver it to City. Contractor will be paid for work
performed to the termination date; however, the total will not exceed the lump sum fee payable
under this Agreement. City will make the final determination as to the portions of tasks completed
and the compensation to be made.
21. COVENANTS AGAINST CONTINGENT FEES
Contractor warrants that Contractor has not employed or retained any company or person, other
than a bona fide employee working for Contractor, to solicit or secure this Agreement, and that
Contractor has not paid or agreed to pay any company or person, other than a bona fide
employee, any fee, commission, percentage, brokerage fee, gift, or any other consideration
contingent upon, or resulting from, the award or making of this Agreement. For breach or violation
of this warranty, City will have the right to annul this Agreement without liability, or, in its discretion,
to deduct from the Agreement price or consideration, or otherwise recover, the full amount of the
fee, commission, percentage, brokerage fees, gift, or contingent fee.
22. CLAIMS AND LAWSUITS
By signing this Agreement, Contractor agrees that any Agreement claim submitted to City must
be asserted as part of the Agreement process as set forth in this Agreement and not in anticipation
of litigation or in conjunction with litigation. Contractor acknowledges that if a false claim is
submitted to City, it may be considered fraud and Contractor may be subject to criminal
prosecution. Contractor acknowledges that California Government Code sections 12650 et seq.,
the False Claims Act applies to this Agreement and, provides for civil penalties where a person
knowingly submits a false claim to a public entity. These provisions include false claims made
with deliberate ignorance of the false information or in reckless disregard of the truth or falsity of
information. If City seeks to recover penalties pursuant to the False Claims Act, it is entitled to
recover its litigation costs, including attorney's fees. Contractor acknowledges that the filing of a
false claim may subject Contractor to an administrative debarment proceeding as the result of
which Contractor may be prevented to act as a Contractor on any public work or improvement for
a period of up to five (5) years. Contractor acknowledges debarment by another jurisdiction is
grounds for City to terminate this Agreement.
23. JURISDICTION AND VENUE
Any action at law or in equity brought by either of the parties for the purpose of enforcing a right
or rights provided for by this Agreement will be tried in a court of competent jurisdiction in the
County of San Diego, State of California, and the parties waive all provisions of law providing for
a change of venue in these proceedings to any other county.
24. SUCCESSORS AND ASSIGNS
It is mutually understood and agreed that this Agreement will be binding upon City and Contractor
and their respective successors. Neither this Agreement nor any part of it nor any monies due or
to become due under it may be assigned by Contractor without the prior consent of City, which
shall not be unreasonably withheld.
25. ENTIRE AGREEMENT
This Agreement, together with any other written document referred to or contemplated by it, along
with the purchase order for this Agreement and its provisions, embody the entire Agreement and
understanding between the parties relating to the subject matter of it. In case of conflict, the terms
of the Agreement supersede the purchase order. Neither this Agreement nor any of its provisions
may be amended, modified, waived or discharged except in a writing signed by both parties.
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26. AUTHORITY
The individuals executing this Agreement and the instruments referenced in it on behalf of
Contractor each represent and warrant that they have the legal power, right and actual authority
to bind Contractor to the terms and conditions of this Agreement.
CONTRACTOR CITY OF CARLSBAD, a municipal
corporation of the State of California
By: By:
(sign here) Scott Chadwick, City Manager
Kurt Chilcott, CEO/President
(print name/title)
ATTEST:
By:
(sign here) BARBARA ENGLESON
Catherine Riddle, Chief Financial Officer City Clerk
(print name/title)
If required by City, proper notarial acknowledgment of execution by contractor must be attached. If a
corporation, Agreement must be signed by one corporate officer from each of the following two groups.
Group A Group B
Chairman, Secretary,
President, or Assistant Secretary,
Vice-President CFO or Assistant Treasurer
Otherwise, the corporation must attach a resolution certified by the secretary or assistant secretary under
corporate seal empowering the officer(s) signing to bind the corporation.
APPROVED AS TO FORM:
CELIA A. BREWER, City Attorney
BY: _____________________________
Assistant City Attorney
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EXHIBIT “A”
SCOPE OF SERVICES
COVID-19 Small Business Loan Program Administration
CDC Small Business Finance
As a leader in the community and economic development field, CDC Small
Business Finance (CDC) provides access to transformative products, services,
and advocacy to ensure all small businesses have the opportunity to succeed
and grow.
We offer a variety of low-interest financing that fit the needs of small businesses
no matter where they are in the growth cycle. Start-ups to seasoned companies
and every small business in between can benefit from our financing
programs. Over four decades, CDC and its affiliate companies have provided
more than $18 billion in funding to over 11,000 small business owners.
Overview:
The City of Carlsbad is seeking an administrator for its COVID-19 business loan
program. CDC has a strong history of providing low-interest financing and
business support for small businesses.
During the pandemic the CDC has been a leading non-profit lender of the
Paycheck Protection Program (PPP), a source of low-interest financing, and an
informational resource for small businesses.
CDC also has active loans with Carlsbad businesses and is an experienced lender
to north county companies. Carlsbad has a diverse economy and given our
experience in lending to businesses of all kinds, we have the knowledge and
people to make this program a success.
One advantage of partnering with CDC is that we can offer more financial
products and resources to aid in the long-term resilience of Carlsbad businesses,
via CDC and its affiliate companies. We believe that small businesses are the
backbone of the economy and by connecting them with advice, access to capital,
and resources we help businesses thrive. Right now, we are all focused on
supporting the economy during the pandemic. But, we see our involvement as
growing our existing support for Carlsbad businesses into a more expansive and
long-term relationship of supporting your economy.
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Business Loan Program Administration:
CDC proposes the following for administering the program:
• Dedicated small business advisor included
• Dedicated online application portal included
• Initial setup of Laser Pro $500
• Application review and denial per application fee $250
• Application review and disposition per application fee $1000
o Credit score check
o Collection of documents from borrower
o Analysis of documents from borrower
o Approval
• File management included in application review and disposition fee
• Preparing closing documents included in review and disposition fee
• Annual loan servicing of a portfolio exceeding $2,000,000 .25%
o Payment collection
o Portfolio management
o Accounting
• Monthly reporting to the City of Carlsbad is included
• (Optional) Liquidation services $75 per hour
We believe in supporting small business and our cities. The cost associated with
administering this program reflect the heart of the way our non-profit does
business. With these reduced administrative fees more funding can go to the
businesses that need it most.
Loan Servicing
CDCSBF will provide Loan Servicing as part of the Agreement. Loan servicing
consists of managing the loan file after loan closing.
CDCSBF will provide the following:
i. Upon notification of loan funding by CITY OF CARLSBAD, CDCSBF will
prepare and send a package of loan document records and payment plan
information to the CITY OF CARLSBAD, enroll the loan in CDCSBF payment
processing system and update CDCSBF’s loan management system (Ventures+)
with relevant funding data and loan monitoring requirements.
ii. Loan payments for the CITY OF CARLSBAD loan, collected via ACH, will be
collected and managed by CDCSBF. All payments will be deposited to a segregated
account managed by CDCSBF Accounting Department. On a monthly basis,
CDCSBF will wire the balance of loan payments received by CDCSBF and invoice
the city for any fees due to CDCSBF.
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iii. Monthly reports including a Non-Current Report with Portfolio Risk Rate and Trial
Balance Report will be provided by CDCSBF to CITY OF CARLSBAD.
iv. CDCSBF will request annual business financial statements of borrowers, annual
personal financial statements of each guarantor and any other reasonable requested
document or report related to a specific credit risk identified by CITY OF
CARLSBAD for a borrower and, when secured will review and risk rate each loan.
In the event a borrower does not respond to repeated requests for updated financial
information, CDCSBF shall establish each loan risk rating based upon repayment
history, seasoning, industry standards and other factors as applicable to loan
borrowers.
v. Loans that become delinquent will be serviced by CDCSBF which may include
repeated telephone, email and/or written demands of payment and fees due
beginning within 5 (five) business days of the payment default. Repeated or
ongoing delinquencies will result in a downgrade of the loan risk rating.
vi. CITY OF CARLSBAD loans that become 61 days delinquent will be transferred to
a CDCSBF Liquidation Analyst for Intensive Servicing and moved to Liquidation
Status. A summary report of the loan, cause for delinquency and recommended
course of action will be provided by CDCSBF to CITY OF CARLSBAD. Any
actions that may result in loan repayment deferment, loan modification or loan
charge off will only be executed by CDCSBF after receipt of written approval by a
CITY OF CARLSBAD representative.
vii. General servicing actions, including but not limited to file at closing and extend
UCC filings for each loan as required by state law, collateral release, loan
subordination, ownership changes, address changes, etc. will be completed on
behalf of CITY OF CARLSBAD by CDCSBF. All such actions that would impact
the collateral position or loan guarantee for CITY OF CARLSBAD will be
approved by CITY OF CARLSBAD in advance of taking any such action.
viii. CDCSBF will monitor all CITY OF CARLSBAD loans for compliance on loan
conditions and covenants through the term of this Agreement or the loan term,
whichever is shorter.
Conclusion
Carlsbad is a vibrant place with a diverse economy. Our proposal reflects our
desire to build upon the support we are already providing to Carlsbad
companies and deliver top-notch service to companies that are struggling
during the pandemic.
Whether it is support directly from the city or finding financing solutions
through other public and private programs, our goal will be to invest in the long-
term viability of Carlsbad, its companies, and economy.
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CITY OF CARLSBAD COVID-19 BUSINESS LOAN PROGRAM
$5,000- $25,000
Term Sheet
Use of Proceeds • Working Capital – Payroll, Rent, Utilities, Mortgage Interest,
Insurance, COVID-19 Compliance and Adaptation
Min/Max Loan Amount
• $5,000 – $10,000
• Gross revenues cannot
exceed $2MM and 15 or
fewer employees
• $10,000 – $25,000
• Gross revenues cannot exceed
$3MM and 50 or fewer
employees
Credit Score
• Minimum 640 FICO
• Bankruptcy at least 3 years old
• No open liens, judgements, suits
Required Documents • Application
• Bank Statement from 12/31/19 to current
Interest Rate & Term
• Deferment of first payment for 180 days
• 0% first 6 months
• 1% months 7-12
• 2% months 13-18
• Term 18 Months
• 2% first 12 months
• 3% months 13-30
• Term 30 Months
• ACH Required for monthly payments
Borrower Fees
• Doc-U-Sign - $XXX
• Out of pocket - $35-50 (Credit reports, Lexis Nexis, Sec of
State)
Prepayment Fee • No Prepayment Penalty
Collateral • None - unsecured
• Personal Guarantee – Majority Owner(s)
Program Eligibility
• Valid business license or proof of business license renewal
prior to April 1, 2020
• Located and licensed to operate in the City of Carlsbad,
California
Other Criteria
• One Loan per Eligible Business
• Borrower Required to Sign Agreement attesting that Loan
Proceeds will be used only for Purposes of Maintaining or
restarting Business
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