HomeMy WebLinkAboutSchmitt Telecom-Small Business Assistance Contract-12.08.2008 .
• Jumpstart Small Business Assistance Program Contract
CONTRACT# AWAR DATE: PROJE J COMPLETION DATE:
JBC17 , 2008 /vas , 2009
CITY: City of Waterloo CONTACT PERSON: Noel Anderson, Director of
715 Mulberry Street Community Planning and Development
Waterloo, Iowa 50703 Email: Noel.Anderson@waterloo-ia.org
Phone: (319) 291-4366
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Fax: (319) 291-4262
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BUSINESS: Schmitt Telecom CONTACT PERSON: en SC wt
I- Partners, Inc. Email: SA�CC hVY1 OM housecbm
722 Water St Phone: -511- L Z - 39-D)
Waterloo, Iowa 50703 Fax: ',M - a3�- 119 i
FORGIVABLE LOAN AMOUNT: $14,521.75
cco3 TERMS OF FORGIVENESS: PROJECT DESCRIPTION:
= The Business must: This Forgivable Loan is provided by the City to the
5 es • Complete the Project by the Business to complete the Project as described in
N Project Completion Date. its application and summarized here. Funds shall
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o • Re-open its business within 12 be used by the Business for [DE CRIBE]:
N months of the Award Date. Y okay jm� k
= • Not be in default of any term of V'
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AWARD AMOUNT: $0.00
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1 ,° d CONDITIONS OF AWARD: PROJECT DESCRIPTION:
cu .0 • Submit documentation of Energy Efficiency Funds shall be used by the
it a w qualifying purchases for Business for [DESCRIBE].
y reimbursement.
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a c • Purchases must meet the
w standards set by the Iowa
Office of Energy Independence.
THE UNDERSIGNED AGREE to be bound by the terms and conditions stated above and the
following documents incorporated by this reference and attached to this Contract: (1) Exhibit A-Jumpstart
Small Business Financial Assistance General Provisions (October 2008), (2) Exhibit B- Business's
Promissory Note, and (3) Exhibit C -Business's Application for Jumpstart Small Business Financial
Assistance. The Parties have entered into this Contract, effective as of the last date stated below (the
"Contract Effective Date").
FOR THE CITY: FOR THEBUSI SS:
Signature ..--Sign .ure
/ Ii in-) i-kt-f y ' Yh.0..y o r S-t(v�h - Ce. i(t M (-+. , S Y .
Print Name and itlePrint Name and Title ->ve3ipte '
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Date Date
Contract#JBC17 1
EXHIBIT B— BUSINESS'S PROMISSORY NOTE
PROMISSORY NOTE —FORGIVABLE LOAN
FOR VALUE RECEIVED, the undersigned promises, in the event this Forgivable
Loan is not forgiven, to pay to the order of the CITY OF WATERLOO, IOWA, at its
office at 715 Mulberry Street the sum of FOURTEEN THOUSAND FIVE HUNDRED
TWENTY ONE DOLLARS AND SEVENTY FIVE CENTS ($14,521.75) with interest at a
rate of 0 % plus, in the event of a default as defined in Contract# JBC17 (the
"Contract"), any costs and expenses that may be assessed as allowed under the
Contract and as stated below.
The terms and conditions by which forgiveness of this Loan may occur are as
specified in the Contract.
Upon default, the whole amount then disbursed to Business shall become
immediately due and payable at the option of the holder.
The undersigned, in case of suit on this note, agrees to pay on demand all costs
of collection, maintenance of collateral, legal expenses, and attorneys' fees incurred or
paid by the holder in collecting and/or enforcing this Note on default.
Makers, endorsers and sureties waive demand of payment, notice of non-
payment, protest and notice. Sureties, endorsers and guarantors agree to all of the
provisions of this note, and consent that the time or times of payment of all or any part
hereof may be extended after maturity, from time to time, without notice.
SCHMI TELECOM PARTNERS, INC
By:
Signature �]
9T�l-�i/j T SC(A Wli rT, S ).
Print Name, Title Ap,
Address: 722 Water Street
Waterloo, IA 50703
Date ( � g
Contract#JBC17 6
EXHIBIT A
JUMPSTART SMALL BUSINESS FINANCIAL ASSISTANCE PROGRAM
GENERAL PROVISONS (October 2008)
1. CONTRACT DURATION. This Contract is secured all necessary authorizations and
effective as of the Contract Effective Date stated approvals with any governmental, regulatory or
on Page 1 and shall remain in effect through the governing board that may be necessary to
Project Completion Date or, if sooner, until the permit Business to execute this Contract and
City has closed out the Contract and provided comply with its terms.
Business with written notice of Contract c. Governmental Approvals, Permits and
closeout. Licenses. To the best of its knowledge,
2. FUNDING.The source of funding for this information, and belief after reasonable due
Contract is a grant from the Iowa Department diligence and investigation to determine the
of Economic Development to the City for accuracy of this representation, Business
represents that it has received all licenses,
financial assistance to businesses. Any permits, and approvals of all Federal, state, and
termination, reduction, or delay of funds local governmental authorities, if any, necessary
available due, in whole or in part, to (i) lack of, to conduct its business, in each case where the
reduction in, or a deappropriation of funds, or(ii) failure to obtain or maintain the same could
any other reason beyond the City's control may, reasonably be expected to have a material
in the City's discretion, result in the termination, adverse effect. No investigation or proceeding
reduction or delay of funds to the Business, all which, if adversely determined, could reasonably
without liability to the City. be expected to result in revocation or denial of
3. ACKNOWLEDGEMENT OF OBLIGATIONS. any material license, permit, or approval is
Business acknowledges and agrees that: (a) this pending or, to the knowledge of the Business
Award is made in consideration of Business's threatened.
representations and warranties described in this d. Litigation and Other Controversies. There is
Contract, and (b) upon violation of such no litigation or governmental proceeding
covenants and warranties, Business is obligated pending, nor to the knowledge of the Business
to immediately repay any amounts the City threatened, against the Business which if
determines Business received without fulfillment adversely determined would adversely impact
of Business's obligations under this Contract, Business's ability to perform under this Contract.
plus applicable costs described in Section 11. e. Compliance with Laws. To the best of its
knowledge, information, and belief after
4. SUSPENSION OF DISBURSEMENT. Upon reasonable due diligence and investigation to
the occurrence of an Event of Default(as determine the accuracy of this representation,
defined in Section 8) the City may suspend Business represents that it is in compliance with
payments to Business until such time as the the requirements of all federal, state and local
default has been cured to City's satisfaction. laws, rules and regulations applicable to or
Notwithstanding anything to the contrary in this pertaining to the operations of Business.
Contract, upon a termination of this Contract on 6. EFFECTIVE DATE OF
account of an Event of Default, Business will no REPRESENTATIONS AND WARRANTIES.
longer have the right to receive any The warranties and representations of Section 5
disbursements after the effective date of default. are made as of the Contract Effective Date and
5. BUSINESS'S REPRESENTATIONS AND shall be deemed to be renewed and restated by
WARRANTIES. Business represents and the Business at the time each request for
warrants to City as follows: disbursement of funds is submitted to the City.
a. Authority and validity of obligations. 7. COVENANTS OF BUSINESS. The Business
Business has full right and authority to enter into covenants that:
this Contract. The person signing this Contract
has full authority to sign this Contract on behalf a. Performance Obligations. Business shall re-
of the Business and to obligate the Business to open it business within 12 months of the Award
the performance of each and all of the Date and complete the Project as described in
obligations under the Contract. this Contract. Business shall promptly provide
City with written notice of any major changes
b. Approvals received. This Contract delivered that would impact the success of the Project. If
by the Business has been duly authorized, the Award includes financial assistance for the
executed and delivered by the Business and purchase and installation of energy efficient
constitutes the valid and binding obligation of the products, the business shall meet the energy
Business and is enforceable against it in efficient standards established by the Iowa
accordance with its terms. Business has Office of Energy Independence.
Contract#JBC17 2
b. Repayment Obligations. Upon the defend and hold harmless the City, its
occurrence of an unremedied Event of Default departments, divisions, agencies, sections,
as described in Section 8, Business agrees to commissions, officers, employees and agents
immediately repay such amounts determined by from and against all losses, liabilities, penalties,
City as due and payable. fines, damages and claims (including taxes),
c. Inspection and Audit. Business shall permit and all related costs and expenses (including
the City and its duly authorized representatives reasonable attorneys'fees and disbursements
to visit and inspect any of the Business's and costs of investigation, litigation, settlement,
properties, books and financial records related judgments, interest and penalties), arising from
to the Project, to examine and make copies of or in connection with any of the following: (i)Any
the books of accounts and other financial claim, demand, action, citation or legal
records, and to discuss the affairs, finances and proceeding arising out of or resulting from the
accounts with, and to be advised as to the same Project; (ii)Any claim, demand, action, citation
by, its officers and independent public or legal proceeding arising out of or resulting
accountants (and by this provision Business from a breach by Business of any representation
authorizes such accountants to discuss with the or warranty made by the Business in this
City and the City's duly authorized Contract; (iii) any claim, demand, action, citation
representatives the finances and affairs of the or legal proceeding which results from an act or
Business) at such reasonable time and omission of Business or any of their agents in its
reasonable intervals as the City may designate. or their capacity as an employer of a person.
Routine inspections and audits performed by 8. EVENTS OF DEFAULT.Any one or more of
City will be at City expense. In the event any the following shall constitute an "Event of
special audits are conducted at City's request, Default"hereunder:
the cost of such special audits will be at a. Noncompliance with Contract. Default in
Business's expense. the observance or performance of any other
d. Compliance with Laws. Business will comply provision of this Contract; or
in all material respects with the requirements of b. Material Misrepresentation. Any
all federal, state and local laws, rules, representation or warranty made by the
regulations and orders including, but not limited Business in this Contract or in any statement or
to prevention of discrimination in employment, certificate furnished by it pursuant to this
equal employment opportunity and affirmative Contract, or in connection with any of the above,
action, worker rights and worker safety, and the proves untrue in any material respect as of the
Iowa Department of Economic Development's date of the issuance or making thereof; or
administrative rules for the Small Business
Disaster Recovery Financial Assistance c. Adverse Change in Financial Condition. Any
Program (261 IAC - Chapter 78). change shall occur in the financial condition of
e. Use of Award Funds. Business shall use the Business which would have a material
Award funds extended under this Contract solely adverse effect on the ability of the Business to
for the purposes set forth in this Contract. perform under this Contract; or
f. Notice of Proceedings. Business shall d. Bankruptcy or Similar Proceedings Initiated.
Either the Business shall (1) have entered
promptly notify the City of the initiation of any involuntarily against it an order for relief under
claims, lawsuits, or other proceedings brought the United States Bankruptcy Code, as
against Business which would adversely impact amended, (2) not pay, or admit in writing its
the Project. inability to pay, its debts generally as they
g. Accounting Records. Accounting records become due, (3) make an assignment for the
shall be available to City, its internal or external benefit of creditors, (4) apply for, seek, consent
auditors, the Auditor of the State of Iowa, the to, or acquiesce in, the appointment of a
Attorney General of the State of Iowa, the Iowa receiver, custodian, trustee, examiner, liquidator
Department of Economic Development and the or similar official for it or any substantial part of
Iowa Division of Criminal Investigations at all its property, (5) institute any proceeding seeking
times during the Contract duration and any to have entered against it an order for relief
extensions thereof, and for three (3) full years under the United States Bankruptcy Code as
from the date this Contract is closed out by City. amended, to adjudicate it insolvent, or seeking
h. Indemnification. Business shall indemnify, dissolution, winding up, liquidation,
Contract#JBC17 3
reorganization, arrangement, adjustment or agree that the dates and time periods specified
composition of it or its debts under any law in this Contract are of the essence to the
relating to bankruptcy, insolvency or satisfactory performance of this Contract.
reorganization or relief of debtors or fail to file an 13. CHOICE OF LAW AND FORUM.
answer or other pleading denying the material In the event any proceeding of a quasi-judicial or
allegations of any such proceeding filed against judicial nature is commenced in connection with
it, or(6)fail to contest in good faith any this Contract, the proceeding shall be brought in
appointments or proceeding described below; Waterloo, Iowa, in the Black Hawk County
or District Court for the State of Iowa, if such court
e. Appointment of Officials. A custodian, has jurisdiction. If, however, such court lacks
receiver, trustee, examiner, liquidator or similar jurisdiction and jurisdiction lies only in a United
official shall be appointed for either the Business States District Court, the matter shall be
or any substantial part of any of its respective commenced in the United States District Court
property, or a proceeding described above shall for the Northern District of Iowa. This provision
be instituted against the Business and such shall not be construed as waiving any immunity
appointment continues undischarged or such to suit or liability, in state or federal court, which
proceeding continues undismissed or unstayed may be available to the City, or its officers,
for a period of sixty (60) days. employees or agents.
9. REMEDIES UPON DEFAULT. If, after notice 14. GOVERNING LAW. This Contract and the
of default and opportunity to cure as provided in rights and duties of the Parties hereto shall be
Section 10, there is an unremedied Event of governed by, and construed in accordance with,
Default, the City may: the internal laws of the State of Iowa without
a. Terminate this Contract and all of the regard to principles of conflicts of laws.
obligations of City under this Contract on the 15. CONTRACT AMENDMENTS. The Contract
date stated in such notice, and may only be amended if done so in writing and
b. Suspend pending disbursements and signed by the Business and the City.
terminate further disbursements of Award funds, 16. NOTICES. All notices hereunder shall be in
and writing and shall be given to the relevant party at
c. Declare the total amount of Award funds its address, fax number or e-mail address as set
disbursed to be forthwith due and payable, forth on the first page of this Contract. Each
including any and all fees, charges and other such notice, request or other communication
amounts payable under this Contract. The total shall be effective (i) if given by facsimile, when
amount due shall be and become immediately such facsimile is transmitted to the facsimile
due and payable without further demand, number specified and a confirmation of such
presentment, protest or notice of any kind. facsimile transmission has been received by the
10. NOTICE AND OPPORTUNITY TO CURE. If sender, (ii) if given by e-mail, when such e-mail
City has reasonable cause to believe that an is transmitted to the e-mail address specified
Event of Default has occurred under this and a confirmation of such e-mail transmission
Contract , the City shall issue a written Notice of has been received by the sender, (iii) if given by
Default to the Business, setting forth the nature mail, five (5) days after such communication is
of the alleged default in reasonable specificity, deposited in the mail, certified or registered with
and providing therein a reasonable period time, return receipt requested, addressed as aforesaid
which shall not be fewer than twenty (20) days or(iv) if given by any other means, when
from the date of the Notice of Default, in which delivered at the addresses specified.
the Business shall have an opportunity to cure, 17. HEADINGS. Section headings used in this
provided that cure is possible and feasible. Contract are for convenience of reference only
11. EXPENSES. Business agrees to pay to the and are not a part of this Contract for any other
City all expenses reasonably incurred or paid by purpose.
City including reasonable attorneys' fees and 18. FINAL AUTHORITY. The City shall have
court costs, in connection with any Default or the authority to reasonably assess whether
Event of Default by the Business or in Business has complied with the terms of this
connection with the enforcement of any of the Contract.
terms of this Contract. 19. WAIVERS. No waiver by the City of any
12. TIMELY PERFORMANCE. The Parties default hereunder shall operate as a waiver of
Contract#JBC17 4
any other default or of the same default on any or unenforceable.
future occasion. No delay on the part of the City
in exercising any right or remedy hereunder 23. NONASSIGNMENT.This Contract may not
shall operate as a waiver thereof. No single or be assigned by Business without prior written
partial exercise of any right or remedy by City consent of the City.
shall preclude future exercise thereof or the
exercise of any other right or remedy. 24. TERMINATION. This Contract may be
20. COUNTERPARTS. This Contract may be terminated in the following circumstances:
executed in any number of counterparts, each of a. As a result of the Business's default under
which shall be deemed to be an original, but all this Contract;
of which together shall constitute but one and b. As a result of the termination or reduction of
the same instrument. funding to the City;
21. SURVIVAL OF REPRESENTATIONS. All c. upon written mutual, written agreement of
representations and warranties made herein or the City and Business.
in any other Contract document or in certificates 25. ORDER OF PRIORITY. In the case of any
given pursuant hereto or thereto shall survive inconsistency or conflict between provisions of
the execution and delivery of this Contract and this Contract and its Exhibits, the following order
the other Contract documents and shall continue of priority shall control:
in full force and effect with respect to the date as a. The terms and conditions of the Award as
of which they were made until all of Business's outlined on Page 1 of this Contract.
obligations or liabilities under this Contract have
been satisfied. b. Exhibit A—Jumpstart Small Business
22. SEVERABILITY OF PROVISIONS.Any Financial Assistance General Provisions
provision of this Contract which is unenforceable (October 2008).
in any jurisdiction, shall, as to such jurisdiction, c. Exhibit B- Business's Promissory Note.
be ineffective to the extent of such d. Exhibit C -Business's Application for
unenforceability without invalidating the Jumpstart Small Business Financial
remaining provisions hereof or affecting the Assistance.
validity or enforceability of such provision in any 29. INTEGRATION. This Contract contains the
other jurisdiction. All rights, remedies and entire understanding between the Business and
powers provided in this Contract or any other the City relating to this Jumpstart Small
Contract document may be exercised only to the Business Financial Assistance Program Award
extent that the exercise thereof does not violate and any representations that may have been
any applicable mandatory provisions of law, and made before or after the signing of this Contract
all the provisions of this Contract and any other which are not contained herein, are nonbinding,
Contract document are intended to be subject to void and of no effect. Neither of the Parties has
all applicable mandatory provisions of law which relied on any such prior representation in
may be controlling and to be limited to the extent entering into this Contract.
necessary so that they will not render this
Contract or any other Contract document invalid
Contract#JBC17 5
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