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HomeMy WebLinkAbout16-128 Resolution No. 16-128 RESOLUTION AUTHORIZING EXECUTION OF A LOAN AGREEMENT WITH LATINO TREATMENT CENTER FOR FINANCIAL ASSISTANCE THROUGH THE CITY OF ELGIN'S EMERGENCY LOAN PROGRAM FOR HUMAN SERVICE AGENCIES BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF ELGIN, ILLINOIS, that David J. Kaptain, Mayor, and Kimberly A. Dewis, City Clerk, be and are hereby authorized and directed to execute a Loan Agreement on behalf of the City of Elgin with Latino Treatment Center providing for a loan of city funds in the amount of$50,000 to Latino Treatment Center through City of Elgin's Emergency Loan Program for Human Service Agencies, a copy of which is attached hereto and made a part hereof by reference. s/David J. Kaptain David J. Kaptain, Mayor Presented: October 12, 2016 Adopted: October 12, 2016 Omnibus Vote: Yeas: 9 Nays: 0 Attest: s/Kimberly Dewis Kimberly Dewis, City Clerk LOAN AGREEMENT THIS LOAN AGREEMENT is made and entered into as of the 12'day of October, 2016, by and between the City of Elgin, Illinois, a municipal corporation, organized and existing under the laws of the State of Illinois (hereinafter referred to as the "City") and the Latino Treatment Center an Illinois not-for-profit corporation (hereinafter referred to as the "Borrower"). WITNESSETH: WHEREAS, the City Council of the City of Elgin has adopted Ordinance No. T19-16, establishing an amended emergency loan program for human service agencies; and WHEREAS, Borrower has requested and the City has agreed to loan to Borrower the principal amount of Fifty Thousand Dollars ($50,000), and Borrower has agreed to repay the City such amount, plus any interest and charges thereon, as provided for in this agreement; and WHEREAS, the purpose of the loan is to enable the Borrower to continue fully serving Elgin residents with substance abuse addiction. NOW, THEREFORE, for and in consideration of the mutual undertakings contained herein, and other good and valuable consideration,the receipt and sufficiency of which is hereby acknowledged, the parties hereto agree as follows: 1. Incorporation of Recitals. The foregoing recitals are incorporated into this agreement. 2. Borrower's Promise to Pay. In return for the loan the Borrower has received from the City Borrower promises to repay to the City in full the amount of Fifty Thousand Dollars ($50,000) (this amount is called the "Principal"), plus any interest and charges thereon, in installments as provided for in this agreement. Borrower will make payments under this agreement in the form of United States dollars by check. 3. Interest. Interest will be charged on unpaid Principal until the full amount of Principal has been paid. Borrower will pay interest at a yearly rate of zero percent (0%) until the Maturity Date (hereinafter defined). The interest rate required by this Section 3 is the interest rate Borrower will pay before any default. The interest rate Borrower will pay after default is described in Section 10 of this agreement. 4. Payments. A. Time and Place of Payments. Borrower will pay the Principal and any interest to the City by making payments to the City in six (6) consecutive monthly installments. Borrower will make monthly installments to the City on the first day of each month beginning on the first to occur of the first of the month of the month after the State of Illinois begins making payments to the Borrower or April 1,2018. Borrower will make these payments every month until Borrower has paid all of the Principal and interest and any other charges described below that it may owe to the City. For the purposes of clarification and example, in the event the State of Illinois begins making payments to the Borrower in November of 2016, then Borrower will be required to begin making monthly payments to the City on December 1, 2016, and will continue to make monthly payments to the City for six (6) months consecutive until the Borrower has paid all of the principal and interest and any other charges described in this Agreement that it may owe to the City. For the purposes of further clarification and example, if the State of Illinois does not begin making payments to the Borrower prior to April 1, 2018, then Borrower will begin making monthly payments to the City on April 1, 2018, and will continue to make monthly payments to the City for six(6)consecutive months until the Borrower has paid all of the principal and interest and any other charges described in this Agreement that it may owe to the City. Each monthly payment will be applied as of its scheduled due date and will be applied to interest before Principal. If on the earlier of six months after the first of the month of the month after the State of Illinois begins making payment to the Borrower or October 1, 2018, Borrower still owes amounts under this loan agreement, Borrower will pay those amounts to the City in full on that date, which is called the "Maturity Date". Borrower will make monthly payments to the City of Elgin at 150 Dexter Court, Elgin, Illinois 60120, or at a different place if required by the City. B. Amount of Monthly Payments. The amount of Borrower's first five monthly payments to the City for Principal shall each be in the amount of Eight Thousand Three Hundred Thirty-Three and 33/100 Dollars ($8,333.33). The amount of Borrower's sixth monthly installment payment to the City for Principal shall be in the amount of Eight Thousand Three Hundred Thirty-Three and 35/100 Dollars ($8,333.35). 5. Borrower's Rizht to Prepay. Borrower has the right to make payments of Principal at any time before they are due. A payment of Principal only is known as a "Prepayment". When Borrower makes a Prepayment, it will tell the City in writing that it is doing so. Borrower may not designate a payment as a Prepayment if it has not made all monthly payments due under this agreement. Borrower may make a full Prepayment or partial Prepayment without paying a Prepayment charge. The City will use Borrower's Prepayment to reduce the amount of Principal that it owes under this agreement. However, the City may apply Borrower's Prepayment to the accrued and unpaid interest, if any, on the Prepayment amount, before applying Borrower's Prepayment to reduce the outstanding Principal amount. If Borrower makes a partial Prepayment, there will be no changes in the due dates of Borrower monthly payment unless the City agrees in writing to those changes. 6. Loan Charges. If a law,which applies to this agreement and which sets maximum loan charges, is finally interpreted so that the interest or other loan charges collected or to be collected in connection with this loan agreement exceed the permitted limits, then: (a) any such loan charge shall be reduced by the amount necessary to reduce the charge to the permitted limit; and(b)any sums already collected from Borrower which exceed permitted limits will be refunded to Borrower. The City may choose to make this refund by reducing the Principal Borrower owes under this agreement or by making a direct payment to Borrower. If a refund reduces Principal, the reduction will be treated as a partial Prepayment. - 2 - 7. Borrower's Failure to Pay as Required. A. Late Charge for Overdue Payments. If the City does not receive the full amount of any monthly payment by the end of five calendar days after the date it is due, Borrower will pay a late charge to the City. The amount of the late charge will be 5%of the overdue payment of Principal and interest. The Borrower will pay this late charge promptly but only once on each late payment. B. Default. If the Borrower does not pay the full amount of each monthly payment on the date it is due, the Borrower will be in default. C. Notice of Default. If the Borrower is in default, the City may send the Borrower a written notice telling the Borrower that if it does not pay the overdue amount by a certain date, the City may require the Borrower to pay immediately the full amount of Principal which has not been paid and all the interest that Borrower owes on that amount. That date must be at least 30 days after the date on which the notices are mailed to Borrower or delivered by other means. D. No Waiver By City. Even if,at a time when the Borrower is in default,the City does not require the Borrower to pay immediately in full as described above, the City will still have the right to do so if the Borrower is in default at a later time. E. Payment of the City's Cost and Expenses. If the City has required the Borrower to pay immediately in full as described above, the City will have the right to be paid back by the Borrower for all its costs and expenses in enforcing this agreement to the extent not prohibited by applicable law. Those expenses include, for example, reasonable attorney's fees. 8. Use of Loan Funds. Borrower shall use the loan funds provided by the City solely and only for services provided by Borrower to Elgin residents for substance abuse services. 9. Default Interest Rate. If the City has required the Borrower to pay immediately in full as described in this agreement,then thereafter interest will be charged on the unpaid balance due to the City at the annual rate of 9%until the full amount of the Principal, interest and any other monies due to the City have been repaid to the City in full. 10. Books and Records. Borrower will keep and maintain or will cause to be kept and maintained on a fiscal year basis in accordance with generally accepted accounting practices using full accrual accounting proper and accurate books, records and accounts reflecting all of the financial affairs of Borrower and all items of income and expense in connection with the operation of Borrower. The City shall have the right, at no cost to the City, from time-to-time upon reasonable notice to examine such books, records and accounts at the office of Borrower or other person maintaining such books, records and accounts and to make copies and extracts thereof as the City shall desire. At the conclusion of each fiscal year of the Borrower the Borrower shall provide to the City at no cost to the City a copy of an audited financial statement on all of the financial affairs of the Borrower. Borrower shall also provide the City prompt written notice when it begins receiving payments from the State of Illinois. - 3 - 11. GivinE of Notices. Unless applicable law requires a different method, any notices that must be given to the City under this agreement shall be given by delivering it or by mailing it by first class mail to the City of Elgin at City of Elgin, 150 Dexter Court, Elgin, Illinois 60120, Attention: Chief Financial Officer, with a copy to the Corporation Counsel, City of Elgin, 150 Dexter Court, Elgin, Illinois 60120, or at a different address if Borrower is given a notice of that different address by the City. Any notices that must be given to the Borrower under this agreement will be given by delivering it or by mailing it by first class mail to Latino Treatment Center, 54 South Grove Avenue, Elgin, Illinois 60120, Attention: Executive Director Adriana Trino, or at a different address if the City is given a notice of that different address by the Borrower. 12. Waivers. Borrower and any other entity which has obligations under this agreement waive the right of Presentment and Notice of Dishonor('`Presentment" means the right to require the City to demand payment of amounts due. "Notice of Dishonor" means the right to require the City to give notice to other persons that amounts due have not been paid). 13. Relationship of the Parties. This agreement shall not be construed so as to create a partnership,joint venture, employment or other agency relationship between the parties hereto. 14. Non-Waiver. The failure of the City to insist upon strict performance of any term of this agreement shall not be deemed to be a waiver of any term of this agreement. 15. Entire Agreement. This agreement constitutes the entire agreement of the parties and the subject matter hereof and may not be changed, modified, discharged or extended except by written amendment duly executed by the parties. Each party agrees that no representations or warranties shall be binding on the other party unless expressed in writing herein or in a duly executed amendment hereof. 16. Applicable Law. This agreement shall be deemed to have been made in and shall be construed in accordance with the laws of the State of Illinois. Venue for the resolution of any disputes or the enforcement of any rights pursuant to this agreement shall be in the Circuit Court of Kane County. 17. Waiver of Trial by Jury. Borrower hereby irrevocably and unconditionally waives any and all rights to trial by jury in any action, suit or counter-claim arising in connection with, out of or otherwise relating to this agreement. 18. Joint Work Product. This agreement is and shall be deemed and construed to be a joint and collective work product of the City and Borrower, and, as such, this agreement shall not be construed against the other party, as the otherwise purported drafter of same, by any court of competent jurisdiction in order to resolve any inconsistency, ambiguity, vagueness or conflict, if any, of the terms and provisions contained herein. 19. Enforceability. Whenever possible, each provision of this agreement shall be interpreted in such matter as to be effective and valid under applicable law, but if any provision of this agreement shall be unenforceable or prohibited by or invalid under applicable law, such - 4 - provision shall only be ineffective to the extent of such unenforceability,prohibition or invalidity, without invalidating the remaining provisions of this agreement. 20. Absolute and Unconditional Obligation. The Borrower acknowledges that the Borrower's obligation to pay the Principal, interest and any other monies which become due to the City pursuant to this agreement is and shall at all times constitute to be absolute and unconditional in all respects, and shall at all times be valid and enforceable irrespective of any other agreements or circumstances of any nature whatsoever which might otherwise constitute a defense to this agreement or the obligation of the Borrower thereunder to pay the monies due pursuant to this agreement. The Borrower to the fullest extent permitted by law absolutely, unconditionally and irrevocably waives any and all rights to assert any defense, set-off, counterclaim or cross-claim of any nature whatsoever with respect to the obligation of the Borrower to pay the Principal, interest and other monies which may become due in accordance with the provisions of this agreement. 21. Indemnity. Notwithstanding anything to the contrary in this agreement, the Borrower shall indemnify and hold the City harmless and defend the City at Borrower's sole cost and expense against any loss or liability, cost or expense(including,without limitation,reasonable attorney's fees and disbursements of the City's counsel, whether in-house staff, retained firms or otherwise), and all claims, actions, procedures and suits arising out of or in connection with this agreement and any and all lawful actions that may be taken by the City in connection with the enforcement of the provisions of this agreement, or in connection with the Borrower becoming a party to a voluntary or involuntary bankruptcy, insolvency or similar proceeding. 22. Default. If the Borrower violates or breaches any term of this agreement, such violation or breach shall be deemed to constitute a default,and the City shall have the right to seek the administrative, contractual, legal or equitable remedies as specified in this agreement and or as otherwise may be available in law or equity. The rights and remedies of the City pursuant to this agreement whether provided by law or by this agreement shall be cumulative and the exercise by the City of any one or more of such remedies shall not preclude the exercise by it, at the time or different times, of any other remedies for the same default. No waiver made with respect to the performance, nor the manner or time thereof, of any obligation of the Borrower of any provision of this agreement shall be considered a waiver of any rights of the City with respect to the particular obligation of the Borrower. In the event of any legal proceedings relating to this agreement the Borrower shall pay and reimburse to the City all of the City's reasonable attorney's fees. In event and to the extent that any legal work is performed by the City's in-house legal counsel the City shall be reimbursed by Borrower for such legal work at the rate of$200.00 per hour, which rate the Borrower hereby agrees and acknowledges to be a reasonable rate for such in-house attorney's fees. 23. Binding of Effect. This agreement shall be binding on the parties hereto and their respective successors and permitted assigns. This agreement and the obligations herein may not be assigned by the Borrower without the express written consent of the City which consent may be withheld at the sole discretion of the City. 24. Representation on Authority of Parties/Signatories. Each person signing this agreement represents and warrants that he or she is duly authorized and has legal capacity to - 5 - execute and deliver this agreement. Each party represents and warrants to the other that the execution and delivery of the agreement and the performance of such party's obligations hereunder have been duly authorized and that the agreement is a valid and legal agreement binding on such party and enforceable in accordance with its terms. IN WITNESS WHEREOF,the undersigned have entered into and executed this agreement on the date and year first written above. CITY OF ELGIN LATINO TREATMENT CENTER By By David apt K , Mayor I Attest: Attest: 644(,elf imberly A. Dewis, y Clerk is JENNIFER J WINTON OFFICIAL SEAL NOTARY PUBLIC STATE OF ILLINOIS MY COMMISSION EXPIRES JANUARY 10,2020 STATE OF ILLINOIS ) SS COUNTY OF K A N E ) I, the undersigned, a Notary Public, in and for the County and State aforesaid, DO HEREBY CERTIFY that David J. Kaptain, Mayor of the City of Elgin, an Illinois municipal corporation, and Kimberly A. Dewis, City Clerk of said municipal corporation, and personally known to me to be the same persons whose names are subscribed to the foregoing instrument, appeared before me this day in person and severally acknowledged that as such Mayor and City Clerk, they signed and delivered the said instrument as Mayor and City Clerk as their free and voluntary act, and free and voluntary act and deed of said corporation, for the uses and purposes therein set forth. Given under my hand and official seal this L_day of Q( i(IJ-- , 2016. IMPRESS NOTARIAL SEAL HERE Notary Public "OFFICIAL SEAL" KATLIN S.BAILEY Notary Public,Slate of 1U1nois tAy Commission Expires 06127h 7 STATE OF ILLINOIS ) SS COUNTY OF K A N E ) 1, the undersigned, a Notary Public, in and fo the Coun and. State aforesaid, DO HERE Y CERTIFY thath ,j(e eu'�7yw_ /Dir0ra—tino Treatment Center, an Illinois not-for-profit corporation, of said not-for-profit corporation,and personally known to me to be the same persons whose names are subscribed to the foregoing instrument, appeared before me this day in person and severally acknowledged that as such and they signed and delivered the said instrument as and as their free and voluntary act, and free and voluntary act and deed of said corporation, for the uses and purposes therein set forth. Given under my hand and official seal this (PI day of rj a , 2016. IMPRESS NOTARIAL SEAL HERE _ Not Public JENNIFER J QUINTON OFFICIAL SEAL NOTARY PUBLIC STATE OF ILLINOIS MY C ANUARY1O10,20201RES F:\Legal Dept\Agreement\Loan Agreement-Emergency Loan Program-Latino Treatment Center-clean 10-4-16-WAC.docx - 7 -