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CCR2005165. . . COMMON COUNCIL - CITY OF MUSKEGO RESOLUTION #165-2005 APPROVAL OF AMENDMENT TO THE REVOLVING LOAN FUIND MANUAL WHEREAS, The City approved a Revolving Loan Fund (RLF) Manual on May 14, 1991 in accordance with the Wisconsin Department of Development, as a participant in the Wisconsin Development Fund (WDF) Loan Program; and WHEREAS, The Manual was rewritten to conform with current Wisconsin Department of Commerce requirements, and renamed "City of Muskego Revolving Loan Fund Program - Policies and Procedures Manual" as approved by the Common Council on June 24, 2003; and WHEREAS, The Manual was amended to increase the marketability of the RLF Loans and the amendments were approved by the Community Development Authority on April 13, 2005; and WHEREAS, The amendments included reducin~~ loan origination fees, reducing loan application fees, and reducing interest rates; and WHEREAS, The amendments required approval of the WI Department of Commerce and those approvals were received in August 2005; and WHEREAS, The Committee of the Whole discussed the Revolving Loan Fund program and recommended the Community Development Authority (CDA) administer the RLF plan. NOW, THEREFORE, BE IT RESOLVED, That the Common Council of the City of Muskego, upon the recommendation of the Community Development Authority, does hereby authorize the amendments to the Revolving Loan Fund (RLF) Manual in accordance with the Policies and Procedures Manual amendments attached. DATED THIS 23rd DAY OF AUQust ,2005. SPONSORED BY: Alderman Eric Schroeder This is to certify that this is a true and accurate copy of Resolution #165-2005 which was adopted by the Common Council of the City of Muskego. 8/2005jm ) . . . \Vi s) f j CITY OF MUSKEGO REVOLVING LOAN FUND PROGFtAM POLICIES AND PROCEDURES MAI~UAL Adopted May 30, 2003 AMENDED August 23, 2005 by the Common Council as approved by the Community Development Authority and the WI Dept. of Commerce Prepared by the City of Muskego Planning Department P.O. Box 749 W182 S 8200 Racine Avenue Muskego, Wisconsin 53150 . . . FOREWORD The Wisconsin Community Development Block Gr.ant (CDBG) Program, administered by the Wisconsin Department of Commerce with funding provided by U.S. Department of Housing and Urban Development, provides local units of government with monies to stimulate economic development. CDBG funds are granted to local governments that, in turn, use the monies to provide loans to new and expanding businesses. Businesses, in return for use~ of the public funds, provide private investment towards the assisted activity and create job opportunities, principally for the benefit of low- and moderate-income persons. Repaid CDBG loans are used by the community to capitalize a local revolviing loan fund (RLF) program. With the RLF, additional loans are made to businesses that are expanding or locating in the community and willing to create jobs. When successfully administered, thE~ RLF can provide a viable source of financing that fills the "gap" between the monies that are available through the private sector and the amount needed to complete a project. In making a RLF loan to a business, communities act like a "bank" and accept responsibilities comparable to a commercial lender. This manual contains the RLF policies and procedures adopted by the City of Muskego Common Council to govern the use of CDBG funds that have been received by the City. For assistance and guidance in accessing these funds, please contact the Director of Planning at (262) 679-4136. 11 . TABLE OF CONTENTS Section 1: GENERAL PROVISIONS 1.1 Purpose 1 1.2 Objectives 1 1.3 Amendments 1 Section 2: ADMINISTRATION 2.1 Loan Review 2 2.2 Meetings 2 2.3 Records 2 2.4 Loan Fees 3 Section 3: ELIGIBILITY CONSIDERATIONS 3.1 Eligible Area 4 3.2 Eligible Applicants 4 3.3 Ineligible Applicants 4 3.4 Eligible Activities 4 3.5 Ineligible Activities 5 . 3.6 Minimum Requirements 5 Section 4: TERMS AND CONDITIONS 4.1 Terms and Conditions 7 Section 5: APPLICATION PROCEDURES 5.1 Initial Contact 9 5.2 Timing 9 5.3 Priority 9 5.4 Loan Application 9 5.5 Review Process 10 Section 6: DISTRIBUTION OF FUNDS 6.1 Loan Procedures 12 Section 7: POST APPROVAL REQUIREMENTS 7.1 Obligation of Loan Recipient 14 Section 8: PERFORMANCE MONITORING . 8.1 Private Leverage Commitments 16 8.2 Job Creation and Retention 16 8.3 Default 16 III . . . Section 9: USE OF LOAN REPAYMENTS AND REPORTING 9.1 RLF Program 18 Section 10: LOAN SERVICING 10.1 Monitoring 10.2 Record-keeping 19 19 Attachment A: Low- and Moderate-Income Limits Attachment B: City of Muskego Revolving Loan Fund Application Attachment C: Loan Servicing Templates IV . . . SECTION 1: GENERAL PROVISIONS 1.1 PURPOSE The policies and procedures that are contained within this manual present the criteria that govern the economic development loans that are made through the City of Muskego Revolving Loan Fund (RLF) program. 1.2 OBJECTIVES Economic development loans made through the RLF program are intended to meet the following objectives: 1.2.01 To encourage the creation and I"etention of permanent jobs that provide a wage appropriate to the skills and experience of the local labor force. A minimum of 51-percent (51 %) of the jobs created and/()r retained shall be made available to low-income and moderate-income persons. 1.2.02 To encourage the leveraging of new private investment in the City in the form of fixed asset and working capital investments. 1.2.03 To perpetuate a positive and proactive business climate that encourages the retention and expansion of existing businesses and helps to attract desirable new businesses. 1.2.04 To lend monies at interest rates and loan maturities that encourages business development and facilitates reinvestment in the City, while providing for the re- capitalization and growth of the RLF. 1.3 AMENDMENTS The Community Development Authority of the City of Muskego (herein "CDA") may from time to time amend the policies and procedures contained within this RLF manual and such amendments are subject to prior written approval by the Wisconsin Department of Commerce. 1 . . . SECTION 2: ADMINISTRATION 2.1 LOAN REVIEW 2.1.01 2.1.02 2.1.03 2.1.04 2.1.05 2.1.06 2.1.07 The CDA will review all RL.F loan requests and forward funding recommendations to the Common Council. Loan requests that receive CDA approval shall be forwarded to the Common Council, which shall make all final funding decisions relative to RLF loans. The Common Council shall have the authority to make policy recommendations to the CDA for the administration of the RLF program. The Director of Planning, or designee, (hereinafter "City Staff") shall be responsible for marketing the RLF program to local businesses, explaining the RLF program, and providing written information to prospectiive applicants. The City Treasurer shall be respclnsible for collecting monthly payments from loan recipients. The Southeastern Wisconsin Regional Planning Commission (hereinafter "SEWRPC") staff shall be responsible for the day-to-day administration of the RLF program, including assisting applicants in completing applications, processing requests for financin!~, and, where necessary and appropriate, counseling and guiding loan applicants to other technical and financial resources when the loan applicant has needs that cannot be met through the RLF program. SEWRPC staff shall periodically review financial statements and loan amortization schedules for RLF loan recipients and review and approve documentation of business expenditures financed with RLF proceeds. The City Finance Department shall maintain RLF accounting records that are segregated from other City accounts and report as requin:!d to the Wisconsin Department of Commerce regarding the use of RLF funds. The City Finance Director is responsible for the maintenance of all City financial records relating to the RLF program. The City Attorney, or designee, shall prepare all loan agreements, review all promissory notes and mortgage or lien instruments, n:!cord RLF security instruments, and counsel City and SEWRPC staff on default matters. 2.2 MEETINGS The CDA shall meet as outlined in By-Laws ó::lnd Rules of Procedure to review completed loan applications. 2.3 RECORDS Written records shall be maintained in appropriate files located in a secure place with limited access by authorized personnel. The City Attorney, or designeE:!, shall be consulted 2 . . . with regard to compliance with State Open Records Laws and City Records Policies. 2.4 LOAN FEES On an annual basis, up to fifteen-percent (15%) of the RLF program income will be made available for personnel costs and other RL.F administrative expenses incurred in the maintenance of the RLF program. In addition, the following fees shall be assessed to all loan recipients: 2.4.01 Loan Application Fee: The City shall require a loan appllication fee of one- percent f4%7 (0.5%) of the RLF loan amount, with a $50 minimum and an $800 $500 maximum. All loan application fees shall be identified as program income and deposited in the RLF account prior to being used to finance administrative costs associated with the program.. 2.4.02 Loan Origination Fees: The City shall require a loan origination fee of $256 $150 or one-percent (1%) 0.5% of the RLF loan amount, whichever is greater. In addition, the City shall require the applicant to pay aft 50 percent of the legal fees and costs incurred by the City for the RLF loan closing. The fees may be added to the principal amount of the loan and paid with RLF funds. All loan origination fees, including attorney's fees, shall be identified as program income and deposited in the RLF account. These funds will then be used to pay for administrative costs associated with the RLF program. 3 . . . SECTION 3: ELIGIBILITY CONSIDERATIONS 3.1 ELIGIBLE AREA The area served by the RLF program shall be within the corporate limits of the City of Muskego. 3.2 ELIGIBLE APPLICANTS 3.2.01 3.2.02 Applications may be submitted by the authorized representatives of any business wishing to establish a new operation or expand an existing operation in the City. Applicants shall not be disqualified based on age, race, religion, color, handicap, sex, physical condition, development disability as defined in s.51.01 (5), sexual orientation, or national origin. 3.3 INELIGIBLE APPLICANTS 3.3.01 3.3.02 No member of the CDA, the Common Council, or any othE!r official, employee, or agent of the City who exercises decision-making functions or responsibilities in connection with the implementation of the RLF pro!~ram is eligible for financial assistance under this program. In addition, no RLF loans shall be made which are in conflict with Section 946.13 of the Wisconsin Statutes (Private Interest in Public Contract Prohibited). RLF loans shall not be available for the following businesses: 3.3.02.1 Speculative investment companies; 3.3.02.2 Real estate investment companies; 3.3.02.3 Lending institutions; 3.3.02.4 Gambling operations; 3.3.02.5 Non-public recreation facilities; or 3.3.02.6 Businesses not serving the interests of the City. 3.4 ELIGIBLE ACTIVITIES RLF loans shall be provided to eligible applicants for the following activities: 3.4.01 3.4.02 The acquisition of land and buildings; The acquisition of furniture, fixtures, and equipment; 4 . 3.4.03 3.4.04 3.4.05 3.4.06 Site preparation; the construction and reconstruction of buildings; the rehabilitation of buildings, including leasehold improvements and façade renovation for commercial and industrial buildings; and the! installation of fixed equipment; Clearance, demolition, and the removal of structures; Working capital; and Buyouts by purchase of assets or stock. 3.5 INELIGIBLE ACTIVITIES RLF loans shall not be available for the following activities: 3.5.01 3.5.02 3.5.03 3.5.04 . 3.5.05 3.5.06 3.5.07 Refinancing or consolidating existing debt; Reimbursement for expenditures prior to loan approval; Specialized equipment that is not E~ssential to the business operation; Residential building constructilon and reconstructi()n (unless such reconstruction is intended to convElrt the building to a busim~ss use); Routine maintenance; Professional services such as feasibility and marketing studies, accounting, management services, and other similar services; or Other activities that the COA may identify as inappropriate for the RLF program. 3.6 MINIMUM REQUIREMENTS To be eligible for funding, a proposed project shall meet all of the following minimum requirements: 3.6.01 3.6.02 3.6.03 .. 3.6.04 Private Funds Leveraged. One dollar of private sector investment shall be provided for each dollar of RLF investment. Private sector investment is defined as financing from a private lending institution, public sector business loan programs other than the CDBG program, or new equity that is injected into the business as a part of the expansion project. Cost Per Job. A minimum of one Full Time Equivalent (FTE) job shall be created and/or retained for each $20,000 of RLF funds requested. Financial Feasibility and Business Viability. The applicant shall demonstrate that the proposed project is viable and that the business has the economic ability to repay the funds. Low- and Moderate-Income (LMI) Benefit. At least fifty-one percent (51 %) of 5 . 3.6.05 3.6.06 . . the FTE jobs that will be created and/or retained shall bel made available to persons who reside in low- and moderate-income (LMI) households as defined by the City with income limits provided by the U.S. Department of Housing and Urban Development (see Attachment A). Compliance with Applicable Laws. Applicants shall comply with all applicable local, State, and Federal laws and codes. Project Completion. All projects shall be completed, all funds expended, and all jobs created and/or retained within 24 months from the elate of the RLF loan approval. All jobs shall be maintained for a minimum of 12 months. 6 . .' . SECTION 4: TERMS AND CONDITIONS 4.1 TERMS AND CONDITIONS Loan terms and conditions shall be structured on the basis of need and ability to repay. Minimum standards include the following: 4.1.01 4.1.02 4.1.03 4.1.04 4.1.05 4.1.06 LO;:in Amount. The amount of funds available for any single business enterprise shall range from a minimum of $20,000 to a maximum of $100,000. Requests for loan amounts less than $20,000 or in excess of $100,000 may be negotiated on a case-by-case basis. Interest Rate. The interest rate on each loan shall be determined on a case- by-case basis by the CDA, subject to approval by the Common Council. Rate shall range from 50% of the prime rate a minimum of 4 percent to a maximum of the prime rate of interest plus 200 basis points as published in the Midwest Edition of the Wall Street Journal c)r 4 percent, whichevel' is less (Note: The range in interest rates is subje(:t to change and is reviewed annually by the Muskego Community Development Authority). The interest rate shall be fixed for the term of the RLF loan. LO;:in Term. Standard terms for R:LF loans shall be as follows: 4.1.03.1 Machinery, equipment, and fixtures-2 to 1 0 YE~ars, 4.1.03.2 Buildings and land-S to 10 years, and 4.1.03.3 Working capital-1 to '7 years. Amortization periods that exceed the loan term may be provided where appropriate. The specific term and amortization period for an individual borrower shall be based on the Llseful life of the asset, als well as the terms offered by the private sector financial institution participating in the project. The Common Council, upon recommendation by the CDA., retains the right to adjust individual loan terms in order to facilitate a successful RLF project. Repayment. Deferral of principal payments may be provided for a maximum period of one year from the date of the first disbursement of RLF funds. Interest-only payments during this period shall be required. Prepayment. There shall be no prepayment penalties. Collateral. Collateral requirements shall be determined on an individual basis by the Common Council and may include: 4.1.06.1 Mortgages on land and buildings; 4.1.06.2 Liens on equipment, 7 . 4.1.07 . 4.1.08 . 4.1.06.3 Accounts receivable, and inventory; 4.1.06.4 Guarantees from, or liens on the assets of, affiliated businesses; assignments of leases and rents; and 4.1.06.5 Assignments of key-person life insurance naming the City as a beneficiary. This collateral may be subordinated to private sector financial institutions participating in the RLF project, if required. Unlimited personal guarantees from the principals of the business who have twenty-percent (20%) ownership or more shall be required, except for publicly held companies. Limited personal guarantees for the owners of the business who have less than twenty-percent (20%) ownership may be required, where appropriate. In addition, junior mortgages on personal residences may be required on projects with limited co,lIateral. Insurance Requirements. Businesses receiving loans for fixed assets shall be required to obtain property-casualty insurance for the appraised value of the property being financed, businesses receiving construction loans shall be required to have builder's risk insurance for the amount of the debt financing attendant to the project, and businesses purchasing rE~al estate shall be required to have title insurance for the amount of RLF neal estate financing attendant to the project. The City :shall be listed as an additional insured on all property-casualty and builder's ris~~ insurance policies. Equity Requirements. The RLF program may require an equity injection for each RLF loan, when appropriate. Consideration will be !~iven for individuals that have made substantial equity commitments to the applicant business, as well as to individuals who do not have sufficient financial resources to contribute to the RLF project. 8 . . . SECTION 5: APPLICATION PROCEDURES 5.1 INITIAL CONTACT Prior to submitting an application, all RLF applicants must discuss the program with SEWRPC staff, who will provide assistance, as is reasonably necessary, in completing an RLF application. All financial information shall be kept in a secured place with limited access by authorized personnel only, subject to the State and City Open Records Laws. 5.2 TIMING 5.3 5.4 Applications may be submitted at any time during the calendar year. PRIORITY Applications shall be reviewed in the order received and based 011 readiness for the proposed project to proceed. In those instances where the number of requests for RLF funds exceeds available funding, RLF applications shall be prioritized based upon the date of receipt of all requested application materials, the number of jobs to be created and/or retained, and the amount of private sector leverage that is included in the project. When feasible, the amount of funds contributed to each project will be reduced in order to facilitate as many loan requests as possible. LOAN APPLICATION Applicants shall submit an application using forms available from SEWRPC staff that includes the following: 5.4.01 A completed RLF application (see Attachment B). 5.4.02 A written business plan that includes the following: 5.4.02.1 A brief history of the existing or proposed business, including when it started or is to start, type of operation, legal structure, management, markets, and products. 5.4.02.2 A marketing plan, including a list of key customers and clients. 5.4.02.3 A personal resume for each principal associated with the business, including: number of years of experience in the business, educational background, and role in the proposed or existing business. 5.4.02.4 Financial statements for the past three years and a current interim financial statement, including balance sheets and income statements that are compiled by an independent accountant in accordance with generally accepted accounting principles, including all footnote disclosures. 9 . . . 5.4.02.5 Aging of accounts receivable and accounts payable corresponding with latest available financial statements. 5.4.02.6 A description of how the business plans to use the requested funds. 5.4.02.7 Letters of commitment from all financial instituticms or other sources of funds for the debt financing that are included in the project. These commitments shall be obtained prior to, or concurrently with, the approval of the RLF loan by the CDA. 5.4.02.8 Financial projections for the first three years of the project, including balance sheets and income statements that are prepared by an independent accountant in accordance with generally accepted accounting principles and include a discussion of all significant assumptions. In addition, start-up businesses shall provide quarterly financial projections for the first two years of the project. 5.4.02.9 Personal financial statements for the principals ()f the business. 5.4.02.10 Cost estimates for equipment purchases, land and building acquisition, and building construction and renovation. 5.4.02.11 A lease or pre-lease agreement for rental property or an offer to purchase for real estatE~ that is included in the project. 5.4.02.12 Documentation that thel project is in compliance with local and State building codes and zoning regulations and other applicable ordinances. 5.4.02.13 Other documentation that may be required to support the RLF projects. 5.5 REVIEW PROCESS Specific steps in the review process include the following: 5.5.01 5.5.02 5.5.03 Project Application. SEWRPC staff shall review the application for completeness and verify that the proposed project meets the minimum requirements provided in Section 3.6. If the application is not complete, SEWRPC staff will inform the applicant of the deficiencies. Initial Review. The CDA shall meet to review an application within 45 days of the receipt of a completed application, as documented in Section 5.4. A recommendation for funding shall be forwarded to the Common Council for a final funding determination. Notice of Award. Upon acceptance by the Common Council, SEWRPC staff shall contact the business to review and explain the loan terms and to schedule a closing to execute the necessary loan documents. 10 . 5.5.04 . . R~ection of Award. If the application is not approved, SEWRPC staff shall notify the applicant in writing of the reasons for the rejectic'n and offer to meet with the applicant to explore ways to strengthen the loan n:lquest or to identify alternative funding sources. 11 . . . SECTION 6: DISTRIBUTION OF FUNDS 6.1 LOAN PROCEDURES The following documentation shall be in place prior to releasing funds, or provided at the appropriate time during the term of the loan. 6.1.01 6.1.02 6.1.03 6.1.04 6.1.05 Loan Approval. Upon a receipt of a positive recommendation from the CDA, the Common Council shall review and approve a complete application, as documented in Section 5.4, for eaGh eligible applicant. Loan Agreement. The City Attorney, or designee, shall prepare a loan agreement that shall be executed by the Mayor and City Clerk, as well as the authorized representatives of the business. Promissory Note. A promissory note shall be prepared by the City Attorney, or designee, and signed by the authorized representatives of the business at the time of loan closing. The note shall be dated, reference the agreement between the City and the business, and specify the amount and terms of the loan funds to be delivered. Security. All documents that are provided as security for RLF loans shall be prepared by the City Attorney, or designee, and executed at the time of the loan closing. The City Attorney, or designee, shall record all security instruments, as needed, and place copies in the project file, as applicable, to include: 6.1.04.1 Mortgages, 6.1.04.2 Security agreements, 6.1.04.3 UCC searches and filings, 6.1.04.4 Title insurance commitments and policies, 6.1.04.5 Assignments of life insurance, 6.1.04.6 Assignments of leases and rents, 6.1.04.7 Property-casualty insurance binders, 6.1.04.8 Corporate guarantees, 6.1.04.9 Personal guarantees, and 6.1.04.10 Other documentation as may be appropriate. Amortization Schedule. An amortization schedule shall be prepared by 12 . 6.1.06 6.1.07 . . SEWRPC staff and forwarded to the loan recipient after all loan proceeds are fully disbursed. Evidence of Program Expenditures. Documentation shall be provided by the applicant to evidence RLF program expenditures prior to the release of funds. Documentation includes invoices or receipts for materials and supplies, final bills of sale, letters from lenders, and canceled checks. All documentation shall be reviewed and approved by SEWRPC staff. SEWRPC staff shall also verify the installation of all fixed equipment. Other Documentation. Documentation shall be provided by the applicant to evidence that all required permllts, licenses, and registrations have been obtained prior to the release of RtF funds. As appropriatl3 or necessary, the borrower may also be asked to provide the following documentation: 6.1.07.1 A certificate of good standing from the Wisconsin Department of Financial Institutions, 6.1.07.2 Articles of incorporation and by-laws, 6.1.07.3 A resolution or agreement to borrow funds, 6.1.07.4 Current financial statements, 6.1.07.5 Evidence of having secured other funds necessary for the project, and 6.1.07.6 An environmental analysis for real estate loans, if justified. 13 . . . SECTION 7: POST APPROVAL REQUIREMENTS 7.1 OBLIGATION OF LOAN RECIPIENT In addition to the terms and conditions of the loan, all borrowers shall êlgree to comply with the following: 7.1.01 7.1.02 7.1.03 7.1.04 7.1.05 7.1.06 7.1.07 The creation and/or retention of the agreed upon number of jobs within 24 months of the date of the execution of the loan agreement with the City. All jobs created and/or retained shall be maintained for a minimum of 12 months. Not to discriminate on the basis of age, race, religion, color, handicap, sex, physical condition, development disability as defined in s.51.01 (5), sexual orientation, or national origin in any employment or construction activity related to the use of RLF monies. To use RLF monies only to pay the cost of services and mélterials necessary to complete the RLF project or activity. To permit inspections by persons authorized by the City of all projects and properties assisted with loan funds. Related project materials shall also be open to inspections that include, but may not be limited to, contracts, materials, equipment, payrolls, and conditions of employment. The borrower shall comply with requests for inspection. To maintain records on the project that are necessary for tlhe City to determine if the performance of the business complies with the terms of the loan agreement. Files shall be maintained as long as the loan is active or for at least three years after completion of the work for which the loan has been obtained, whichever is longer. To submit the following documentation during the outstanding term of the RLF loan: 7.1.06.1 Semi-annual financial statements verified by thl3 borrower within 45 days of the end of each calendar quarter, 7.1.06.2 Annual financial statements compiled by an independent accountant in accordance with generally aGcepted accounting principles within 120 days of the end of each fiscal year, 7.1.06.3 Signed copies of corporate federal income tax returns within 30 days following their due dates, and 7.1.06.4 Annual progress reports. To maintain property-casualty insurance for the property financed with RLF monies for the term of the RLF loan. The City shall be listed as an additional 14 . 7.1.08 . . insured on the policy. In addition, key-person life insurancl3 coverage naming the City as a beneficiary, with a declining balance equal to tlhe outstanding loan balance may be used where appropriate. To abide by all Federal laws, when applicable. These include, but may not be limited to: the Civil Rights Act of 1 !364, the Age Discrimination Act of 1975, the Davis-Bacon Act (as amended), the Contract Work Hours and Safety Standards Act, the Copeland "Anti-Kickback" Act, and all flegulations pursuant to these Acts. 15 . . . SECTION 8: PERFORMANCE MONITORING 8.1 PRIVATE LEVERAGE COMMITMENTS SEWRPC staff shall monitor the use of the funds and expenditure of private leverage commitments. Documentation shall include invoices or receipts for materials and supplies, letters from lenders, final bills of sale, and canceled checks. 8.2 JOB CREATION AND RETENTION SEWRPC staff shall monitor the borrower's progress in meeting agreed upon job creation and/or retention goals. Job creation shall bl~ documented using prH-project and post- project payroll records. 8.2.01 For each FTE job that is not created and/or retained and for each Low- Moderate Income (LMI) job that is not created and/or retained during the required time period, the following penalties shall apply: 8.2.01.1 If the Department, in its reasonable discretion, determines that the Borrower has failed to comply with its obligations under Section 7, then for each Full-Time Position that the Borrower fails to keep, create and fill, or maintain, whichever the Gase may be, the Borrower shall pay the Municipality upon demand a penalty of One Thousand Dollars (USD$1,OOO.00) for each Full-Time Position. 8.2.01.2 If the Department, in its reasonable discretion, determines that the Borrower has failed to comply with its obligations under Section 7, then for each FTE job that the Borrower has not Made Available to LMI Persons, the Borrower shall pay the Municipality a penalty of One Thousand Dollars (USD$1 ,000.00). 8.2.02 In no event shall the loan recipient be assessed a penalty under both 8.2.02.1 and 8.2.02.2 above for the same job which it has failed to create and/or retain. Job penalties may be paid in one lump sum or added to the principal of the RLF loan and amortized over the loan term. 8.3 DEFAULT In the event the business is in default on any of the terms and conditions of the loan agreement, the promissory note, or any other loan document, other than the failure to make a payment of principal or interest when due or to create and/or retain the agreed upon number of jobs, all sums due and owing to the City, including the full unpaid principal balance and all unpaid accrued interest, shall, at the option of the City, become immediately due and payable. To exercise this option, the City Attorney shall provide a written notice to the business that specifies the following: 16 . 8.3.01 The default; 8.3.02 The action required to cure the default; and 8.3.03 A date, not less than 60 days from the date of the notice, by which the default shall be cured to avoid foreclosure or other collective action. If the borrower fails to make any payment of principal or interest when due under the promissory note, and the default continues for 30 days, all sums due and owing to the City, including the full unpaid principal balanCE! and all unpaid accrued interest shall, at the option of the City, become immediately due and payable, without notice or demand. The failure to create or retain the agreed upon number of jobs is not a default, but is subject to the provisions of Section 8.2 hereof. In the event of the occurrence of a default, other than a default under Section 8.2 hereof, and the City exercises its option to accelerate the promissory note, then interest after the date of default shall be computed at a market rate to be established at the time the loan agreement is executed. . . 17 . . . SECTION 9: USE OF LOAN REPAYMENTS AND RIEPORTING 9.1 RLF PROGRAM Repaid RLF monies shall be deposited in the RLF account and used in a manner consistent with the RLF manual. A separate record for each loan shall be kept to account for all funds loaned. The RLF account shall be audited on an annual basis and City and SEWRPC staff shall provide progress reports as required to the Wisconsin Department of Commerce regarding the use of RLF program income. Reports shall be submitted on forms prescribed by the Department. 18 . . . SECTION 10: LOAN SERVICING 10.1 MONITORING 10.2 SEWRPC staff shall monitor each loan to ensure compliance with the loan terms and conditions and to monitor the financial health of the business to ensure continued repayment of the loan. The monitoring shall also ensure that all record-keeping requirements are met particularly with regard to job creation and the expenditure of matching funds. A loan servicing file shall be established and maintained for each loan recipient that includes all written correspondence; a record of important telephone conversations; a list of applicable loan covenants; certificates of insurance for builder's risk, property-casualty, and life insurance, as applicable; and documentation for job creation and retention including low- and moderate-income benefit. RECORD-KEEPING A loan servicing file shall be established and maintained for each loan recipient that includes the following: 10.2.01 Loan Application File. The loan application file shall include! a copy of the RLF application, business financial statements, personal financial statements, business plan documents, and other supporting loan information submitted to the City, including all applicable correspondence. In addition, the file shall contain a copy of the loan application summary with recommended actions regarding the application, and a copy of the minutes for the public meetings held to take action on the loan request. 10.2.02 Loan Closing File. The loan closing file shall includE~ all loan closing documents, including the note and other security instruments; closing statement; title insurance commitment and policy, if applicable; certificates of insurance for builder's risk, property-casualty, and life insurance, as applicable; and documentation for job creation and retention including documentation that jobs were made available to LMI persons. This file shall be placed in a locked, fireproof vault. SEWRPC staff shall be involved in helping create and complete this file to ensure complete loan documentation. Copies of the loan closing documents and an amortization schedule shall be provided to the loan recipient. 10.2.03 Financial Management File. RLF financial management records shall be maintained that include the following registers: 10.2.03.1 RI F Register: A record of all deposits and disbursements to and from the RLF, including funds used for RLF administration. 10.2.03.2 CDBG Loan Repayment Register: A record of all repayments made 19 . by each business that has received a loan from the CDBG program, as well as the balance of repayments from all CDBG loans. 10.2.03.3 RLF Loan Repayment Register: A record of all repayments made by each business that has received a loan from the RLF, as well as the balance of repayments from all RLF loans. 10.2.03.4 Collection Register: A register for each loan that contains the business name, loan date, loan amount, terms, and date repayment begins. 10.2.03.5 "Tickler File" System. A tickler file system shall be established and maintained to ensure that loan repayments, financial information, the loan agreement, UCC updates, and other documentation requirements are tracked and obtained as required. The system will include the following monthly-coded index files: 10.2.03.5.1 Expiration dates for property-.casualty and life insurance policies, 10.2.03.5.2 Due dates for all financial statemEmts, . 10.2.03.5.3 Expiration dates for UCC Financing Statements, the remindel" to update being at least 45 days prior to the expiration of the UCC filing on hand, 10.2.03.5.4 Schedulied dates of annual loan performance and covenant reviews, 10.2.03.5.5 Dates for site visits, 10.2.03.5.6 Due dates for property tax payments and dates by which the community expects to hear from the borrower regarding confirmation of payment of taxes, 10.2.03.5.7 Review dates for job monitoring, and 10.2.03.5.8 Dates on which loan recipients will be notified of scheduled changes in the loan amortization scheduled per loan agreements. 10.2.03.6 Financial Statement Fila. The financial statememt file shall include the business' periodic financial statements as nequired by the loan covenants with a statement indicating that SEWRPC staff reviewed the data. . 10.2.04 Progress Report File. During thEl outstanding term of the RLF loan, loan recipients shall be required to submit semi-annual progress reports with financial statements that will be stored in this file (see Attachment C). 20 . 10.2.05 10.2.06 10.2.07 . . Field Visit File. SEWRPC staff shall make periodic field visits to verify information in the progress report and financial statements. A summary of each site visit will be placed in the permanent file, including any information that can assist in assessing the overall condition and risk of the loan (see Attachment C). Repayment-Monitoring File. The repayment-monitoring file shall include the loan amortization schedule and status of payments on the RLF loan. Observations regarding concerns or problems shall be reported to the City and notations placed in the tickler filE~ to remind SEWRPC staff of the need to provide continued monitoring. Loan Review File. All loans shall be reviewed on an annual basis, and at such other times as may be deemed necessary by the City. ThEl review shall follow receipt of the fiscal year-end financial statements, the year-end progress reports, and site visits. A report on the loan review will be placed in the file and address the following: timeliness of monthly payments, condition of collateral securing the loan and status of security documents, overaU financial condition of the business, the presence of material liens or lawsuits, and violations of loan covenants and suggested corrective actions (see Attachment C). If the business is experiencing problems, City and SEWRPC staff shall work with the loan recipient to identify actions that are needed to correct the identified deficiencies, including possible restructuring of the loan to improve cash flow within the business. Restructuring can include deferring principal and interest payments, adjusting the rate of interest, and providing additional working capital. If appropriate, City and SEWRPC staff shall arrange for business assistance, including sl3rvices available through the University of Wisconsin-Extension, Small Business Development Center, the Service Corp of Retired Executives, and other entities having an interest in serving the needs of businesses. 21 . . . ATTACHMENT A City of Muskego Revolving Loan Fund 2004 Low- and Moderate- Income Limits Household Size Household Income 1 Person $ 37,650 2 Persons $ 43,000 3 Persons $ 48,400 4 Persons $ 53,750 5 Persons $ 58,050 6 Persons $ 62,350 7 Persons $ 66,650 8 Persons or More $ 70,950 Note: This schedule is updated annually. Effective date: January 28, 2004. Source: U.S. Department of Housing and Urban Development, Wisconsin Department of Administration, and SEWRPC. This Attachment is included for reference, and is subject to change upon the availability of updated information from the US Department of Housing and Urban Development. 22 . . . co I- Z w :E J: () <( I- ~ z o l- e) :::::i a.. a.. ~ o Z :J u.. z ð .....I c..9 Z ~ o > W 0::: o c..9 w ~ CJ) :J :2: u.. o ~ o Qj E co Z en en Q) "~ en :l CO en en Q) .... "'0 "'0 ~ T""" ë o ~ Q) a.. ..... () CO ..... C o o c o :;:; ....J ~ o I- ï:: () en Q) o ..... () Q) o .... a.. en -.... Q) :t:: C :l 6 w .... Q) ï:: (II .... 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