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HomeMy WebLinkAbout2001-11 PW Economic Dev. AwardRESOLUTION NO. 2001- A RESOLUTION AUTHORIZING THE STATE OF OREGON SPECIAL PUBLIC WORKS FUND FINANCIAL ASSISTANCE AWARD CONTRACT ("CONTRACT") AND LOAN AGREEMENT BETWEEN THE STATE OF OREGON, ACTING BY AND THROUGH ITS ECONOMIC AND COMMUNITY DEVELOPMENT DEPARTMENT, AND THE CITY OF ASHLAND THE CITY OF ASHLAND RESOLVES AS FOLLOWS: SECTION 1. The State of Oregon Special Public Works Fund Financial Assistance Award Contract ("Contract") and Loan Agreement between the State of Oregon, acting by and through Its Economic And Community Development Department ("OECDD"), and the City of Ashland, reference number B01006, are authorized. The authorization is made with the following understanding and conditions: 1.1. Compliance with Section 6.A.1 of the Contract, which requires compliance with State procurement regulations found in ORS Chapter 279, will be satisfied as follows: City will not bid out for the general contractor for the project but will contract with Oregon Shakespeare Festival Association, an Oregon corporation, ("OSF") for the construction of the project. OSF will utilize the same general contractor chosen for the adjacent construction project for a theater. This contractor is qualified to construct the project, the two projects will be constructed simultaneously and both projects will benefit from a coordinated construction. The general contractor will bid out substantially all construction work required for the project through a series of subcontracts. Use of the contractor's forces on the project will be kept to a minimum. The general contractor will solicit all subcontract bids, through Daily Journal of Commerce advertisements and through placement of bid announcements in at least ten plan centers in the state including Medford, Klamath, Josephine County and Douglas County. Ads will not be placed in a local newspaper. 1.2. Compliance with Section 6.A.9 of the Contract, which requires City's compliance with the provisions of ORS 279.312,279.314, 279.316, 279.320, and 279.555, will occur except that the requirements of these provisions will not be incorporated in bid solicitations or agreements. 1.3. Notifications regarding the project required in Section 6.D of the Contract will be included in documents created after the Contract is executed by both the State and the City. 1- Resolution G:\legal\PAUL\OSF',resolution authorizing grant and loan agreement.wpd 1.4. Notwithstanding the language in Section 6.1 of the Contract, City may enter into a ground lease for the property upon which the project is constructed if City retains ownership of all improvements made as a part of the project. 1,5, As required in Section 6.M of the Contract, a registered professional engineer will be responsible for design and construction of the project, but the engineer will be contracted for by OSF. The City did not verify the engineer's registration or complaint history with the Oregon Board of Engineering Examiners prior to OSF contracting with the engineer. SECTION 2. The City Administrator is authorized to execute the Contract and Loan Agreement, including the promissory note, on behalf of the City and to deliver the Contract and Loan to OECDD together with this resolution. This rz~solution was read by title only in accordar~ce with Ashland,,J~unicipal Code Barbara Christensen, City Recorder SIGNED and APPROVED this /~ day of Ra~u~l NWed as to form: olte, City Attorney ~--~ ,2001. Alan W. DeBoer, Mayor 2- Resolution G:\legal\PAUL\OS~resolution authorizing grant and loan agreement.wpd STATE OF OREGON SPECIAL PUBLIC WORKS FUND FINANCIAL ASSISTANCE AWARD CONTRACT This Contract is made and entered into by and between the STATE OF OREGON, ACTING BY AND THROUGH ITS ECONOMIC AND COMMUNITY DEVELOPMENT DEPARTMENT ("State") and the City of Ashland ("Borrower"). The reference number of this Contract is B01006. RECITALS WHEREAS, the award of financial assistance whi authorized by ORS 285B.410 through 285B.482 (the WHEREAS, a reasonable estimate of the one million, eight hundred thousand dollars (~ WHEREAS, the Borrower has committed to resources as matching funds for the Project; and WHEREAS, the State has reviewed the Project, as hereinafter defined, is feasible an WHEREAS, the State is to the Borrower on the terms and ind Contract is as he~ is in public and/or private appli, ;rmined the and a Grant of $600,000 NOW, THEREFORE, the partiE "Act" 'IONS terms shall have the following meanings: h 285B.482, as amended. the State offering a Loan and/or Grant to the 'Contract" meat schedules an~ between the State and the Borrower, including any as amended from time to time. -- "Costs of ect" shall mean all costs of acquiring and constructing the Project, ~g costs properly allocable to the Project, as set out in the approved --xhibit B to the Loan Agreement. "Default" shall mean an event which with notice or lapse of time or both would become an Event of Default as set out in Section 7 hereof. 1 - G:\IegaI\PAUL',OSFS0 grant agreement to council on 5-15.wpd "Event of Default" shall mean any of the events described paragraphs A through E of Section 7 of this Contract. "Grant" shall have the meaning ascribed thereto in Section 2(B) of this Contract. "Loan" shall have the meaning ascribed thereto in Section 2(A) of this Contract. "Loan Account" shall mean the Loan Account created by the State for the Borrower in the Special Public Works Fund. "Loan Agreement" shall mean that certain loan agreement, SL Exhibit 1 attached hereto and by this reference made a State and the Borrower on the date hereof, as such ac amended and/or restated. ~ the form of between the time be "Note" shall mean that certain promissory notei the Loan Agreement, executed by the Borrower in f be amended, extended, renewed or restated. in the fo as it may to time "Project" shall have the meaning ascribed the~ in Exhibit A of the Loan Agreement. reement and described "Project Area" shall mean all propert construction of the Project. and served by "Project Close-Out Date" shall written confirmation that the Projec required by Section 5(D) State sends the Borrower and that the job creation "Pro Completior corn 3 which the Borrower has in fact in Section 3.02(d) of the Loan "SI 285B.455(I ). acting througl" )N 2 ~ount of Loan to the mean the Special Public Works Fund created by ORS )onds or other obligations issued by the State of Oregon, to fund, refund or refinance the Loan. .RD d conditions of this Contract and the Loan Agreement, the State agrees rrower in the principal amount of nine hundred thousand dollars ($900,000) B. Amount of Grant Subject to the terms and conditions of this Contract, the State agrees to provide funds to the Borrower in the amount of six hundred thousand dollars ($600,000) (the "Grant"). 2- G:\IegaI',PAUL\OSF~0 grant agreement to council on 5-15.wpd C. Availability of Funds The amounts set out in Sections 2(A) and (B) above are subject to the availability of moneys in the Special Public Works Fund. D. Change in the Act The State shall not be obligated to provide the Loan and/or Grant if, on or prior to the time the Borrower satisfies all conditions for disbursement of the Loan and/or Grant, there has been a change in the Act so that the Project is no longer eligible for the financial assistance authorized by this Contract. E. Drawdowns The Borrower must submit drawdown requests for the cash request form. F. Participation Rate The Borrower shall finance no more than eighty-three Costs of the Project from the Grant and Loan that notwithstanding any other provision of this Contra( and Grant shall not exceed the Participation Rate SECTION 3 USE A. Eligible Activities The use of the Grant and/or Loan is expres Exhibit A of the Loan Agreement. The Special Conditions set out in Exhibit 2 herein. B. Ineligible Activities No part of the Grant or Loan si' 1. fistrative the reports and Purchase of P~ State-approved percent and the rees ate drawdowns on the Loan 3e Project. ties described in subject to the incorporated I:o ~ ~award to ~ ~~!~ of funds nary and final engineering, surveying, architectural to the construction of the Project. which are or will be privately owned; ~t, such as motor vehicles, not directly appurtenant to the 5. Purchase property for project-related purposes such as wetland mitigation uses related to the Project; ion and maintenance expenses; C. Unexpended Funds Any portion of the Grant remaining after this Contract is terminated or ninety (90) days after the Project Completion Date shall be returned to the Special Public Works Fund. Unexpended Loan proceeds shall 3- G:~IegaI\PAUL\OSF~0 grant agreement to council on 5-15.wpd be applied in accordance with Section 2.06 of the Loan Agreement. SECTION 4 REPRESENTATIONS OF THE STATE The State certifies that at the time this Contract is signed, sufficient funds are available and authorized for this Contract. SECTION 5 REPRESENTATIONS OF THE BORROWE The Borrower represents and warrants to the State that: A. Costs of the Project A reasonable estimate of the Costs of the Project is or ($1,800,000). ht B. Matching Funds As of the date hereof, matching funds of $300 Before any disbursement of the Loan or Grant, the satisfaction of the State, that it has obtained added to the amount of the Loan and ~mitted to the Project. si to the Is in ar when reject. C. Binding Obligation This Contract has been duly constitutes the legal, valid and bin, with its terms. the the Borrower and enforceable in accordance D. Job ion firms have to re .~1~ y~~ Number of Jobs to be Number of Created/Retained Family-Wage Jobs O 4 4 T~ninimum number~jo~s that must reated/retained in two (2) years 4 4 b~r ~et edda/rteet ao~nt~ i~ o~ratWc~to meet ~liLm require~ii~l~fts are: 4- G:\IegaI\PAUL\OSF~0 grant agreement to council on 5-15.wpd SECTION 6 COVENANTS OF BORROWER The Borrower covenants as follows and understands that the requirements of the covenants may only be waived or amended by a written instrument executed by the State: A. Compliance with Laws The Borrower will comply with the requirements of all applicable laws, rules, regulations and orders of any governmental authority that relate to the construction of the operation of any utility system of which the Project is a component. In limitation, the Borrower shall comply with: 1. State procurement regulations found in ORS 2. State labor standards and wage rates found 3. State municipal finance and audit regulation~ 4. State regulations regarding industrial accider 5. State conflict of interest requirements for 6. State environmental laws or regul hereto. 7. Oregon Administrative at the discretion of the State. 8. State municipal bondi 284,286, 2l and 288. The with the pr time to time, B. Disbul the disl: C, The of the Loan lit drawin¢ ~d the :}RS Chapter; in ORS Chapter 656· sted in Exhibit 3 amended from time to time the Act and in ORS Chapters 280, Bank Applicant's Handbook. is conditioned upon the Borrower's compliance 279.316, 279.320, and 279.555 as amended from herein. · The amount of time between receipt of Grant funds by be kept as brief as is administratively possible. ~all obtain as-built drawings for all facilities constructed with the /or Grant. The Borrower shall obtain certification of completion per the e Project engineer. 5- G:\IegaI\PAUL\OSF\0 grant agreement to council on 5-15.wpd D. Operation and Maintenance of the Project.. By the Project Completion Date, the Borrower will have a program, documented to the satisfaction of the State, for the on-going maintenance, operation and replacement, at its sole expense, of the public works service system, if any, of which the Project is a part. This program should include a plan for generating revenues sufficient to assure the operation, maintenance and replacement of the facility during the service life of the Project. E. Signs and Notifications. The Borrower shall display a sign, provided by the State, near the Proj stating that the Project is being funded by Lottery proceeds. The following statement, prominently placed, on all plans, advertisements relating to the Project: "This Project was funded in part with a financial Fund, funded by the Oregon State Lottery and Economic and Community Development Depal d from F. Creation of Construction Account In case of any Loan that is not funded in whole or in Borrower shall establish and maintain a segregated of State Bonds, the The Loan proceeds and Grant amount, amounts are disbursed by the State to the this account. Earnings on this account sh; shall only be used to pay the Costs of or Grant shall be deposited in Moneys in this account G. Insurance Except as may be provided in th, portion thereof, is destroyed an, the State ar shall be appl State in e Proj ird, in the event the Project, or any insurance proceeds shall be paid to :e of the Loan in such manner as the State agrees in writing that the insurance H. Indemn To the extent Claims the prope from 10 of the Oregon Constitution, the Oregon Tort relevant Oregon statutes, the Borrower shall indemnify and agents against any liability for damage to life or Borrower or its subcontractors, agents or employees. I. Leases and ~brances may not sell. exchange, transfer or otherwise dispose of any property Project or any interest therein unless (1) it is worn out, obsolete or, in ss judgement of the Borrower, no longer useful in the operation of the transaction will not adversely affect the exclusion from gross income for purposes of the interest on the note pursuant to Section 103(a) of the Code. y be provided in the Special Conditions of Award, proceeds of such sale, lease, exchange, transfer or other disposition which are not used to replace the property up to the amount of such proceeds times the Participation Rate shall be deposited in the Loan Account and shall be applied to the outstanding balance of the Loan. 6- G:\IegaI\PAUL\OSF\0 grant agreement to council on 5-15,wpd J. Condemnation Proceeds. Except as may be provided in the Special Conditions of Award, in the event the Project, or any portion thereof is condemned, any condemnation proceeds shall be deposited in the Loan Account and shall be applied to the outstanding balance of the Loan. K. Economic Benefit Reports.. The Borrower shall submit reports on the economic development benefits of the Project for the period from the date hereof until two (2) years after the Project Close Out Date at such intervals and in such form as the State shall specify. Reports shall document temporary jobs associated with the Project and any new direct permanent or retai~ from the Project. The reports shall document the general economic ect to the community and provide other information necessary to Project. The preparation and filing of these reports shall be at the Bo~ L. First Source Hiring Agreement.. If this project then prior to disbursement of the Loan or Grant, First Source Hiring Agreement with the appropriate executed First Source Hiring Agreement must be agency, and a State. a le fully M. Registered Engineer. A registered professional construction of the project. The borrower will check Examiners to verify an engineer's registration engineer. for design and , the Or Engineering __ 3t histo g with the If any of the following Events of D( uing, namely: A. The Borrower fails to or phase of' le Project in ~ complete, the Project or any segment schedules approved by the State; or or in the progres requirements duties by ,istorical information made to the State herein ;rtificates and reports relied upon by the State in gauging the requirements of the Act or compliance with the 141 through 150 of the Code and performance of or C. Th, SI.__ fails to corm eficiencies, or sL any of its covenants or agreements contained eficiencies within thirty (30) days of notice from the State of ~er period as the State may authorize in its sole discretion; or six (6) the date of this Contract, the Borrower has not entered into its with all private parties necessary to complete the Project; or f an Event of Default under the Loan Agreement; 7- G:\IegaI\PAUL\OS~0 grant agreement to council on 5-15.wpd thereupon, and in each such case, the State, upon notice to the Borrower, may terminate the whole or any part of this Contract. SECTION 8 REMEDIES Upon the occurrence of an Event of Default under this Contract, the State may pursue any or all of the remedies set forth herein or in the Loan Agreement or Note and any other remedies available at law or in equity. Such remedies may include, but are not limited to, ~ination of the Contract and/or Loan Agreement, acceleration of the Loan, return payment of amounts earned from the investment of the proceeds of the Loan anc declaration of the Borrower's ineligibility to receive future lottery funded ~ olding pursuant to ORS 285B.449 of other State funds due the Borrower SECTION 9 A. No Implied Waiver, Cumulative Remedies No fail and no delay in exercising, any right, power, or waiver thereof, nor shall any single or partial Contract preclude any other or further exercise the~ power or privilege. The remedies provided remedies provided by law. ~r the ( of the State to exercise, )ntract shall operate as a or privilege under this other such right, of any B. Notices All notices, requests, hereto shall be in writing and shall be in the mails, postage prepaid, add other communication is below or at such other address hereto. ans to or upon the parties given or made when deposited such notice, request, demand, or or made at the addresses set forth ~ave notified in writing the other party If to :Team c and Community Development Department Street NE, Suite 200 B0 If to the I~ of Ashland East Main Street Ashland, OR 97520 endments al terms of this Contract, including timeframes for Project completion, will modified, supplemented, or amended in any manner except by written the parties. D ees The prevailing party in any dispute arising from this Contract shall be entitled to recover from the other its reasonable attorney's fees at trial and on appeal. 8- G:\IegaI\PAUL\OS~0 grant agreement to council on 5-15.wpd E. Severability If any term or condition of this Contract is declared by a court of competent jurisdiction to be illegal or in conflict with any law, the validity of the remaining terms and conditions shall not be affected, and the rights and obligations of the parties shall be construed and enforced as if the Contract did not contain the particular term or condition held to be invalid. F. Merger This Contract constitutes the entire agreement between the parties on the subject matter hereof. There are no understandings, agreements or representations, oral or written, not specified herein regarding this Contract. The Borrower, by the signature below of its authorized representative, hereby acknowledges that it has read this Contract, understands agrees to be bound by its terms and conditions. IN WITNESS WHEREOF, the parties hereto have cause as of the last date set forth below the signatures of their ,e duly executed 9- G:\IegaI\PAUL\OSF\0 grant agreement to council on 5-15.wpd CITY OF ASHLAND GRANT AND LOAN AGREEMENT with OREGON SHAKESPEARE FESTIVAL ASSOCIATION Agreement made this day of ,2001, between the City of Ashland ("City") and the Oregon Shakespeare Festival Association, an Oregon corporation ("OSF"). RECITALS: A. City has been awarded a State of Oregon Economi Department ("OECDD") grant and loan, Project No. F0332( on Hargadine Street ("the project"). The grant and loan ar Fund Financial Assistance Award Contract ("OECDD ¢ Exhibit A, and a Loan Agreement ("OECDD loan agreer between the OECDD and the City containing the City ect to the grant )ment project ic Works B. The funds received through the grant and loan and loaned to OSF to construct the project as provided between the City and OSF ("the lease"). are to be in turn granted 20, 2000, C. City and OSF enter into this agreeml the OECDD grant and loan agreements. to th conditions in City and OSF agree: 1. Loan Funds: Subject to the term.. agreement, City agrees to make conflict between the terms of the terms of this sh~ of the the .3DD loan agreement and this of $444,230. Should there be a and the terms of this agreement, the 1 conditions City as speci! this ,to City in accordance with the terms and DD loan agreement and promissory note executed by ~ent. 1.2. attached note Prim and accrued Is by the City 9xecute a promissory note, in substantially the form ! in the principal amount of the loan. The principal of the the date specified in the OECDD loan agreement. .11 be paid in installments due 30 days prior to the date e under the OECDD loan agreement. .3. may draw down the loan as provided in the OECDD loan litions precedent as specified in the OECDD loan agreement have been shall not be entitled to interest on the loan proceeds for the time between cie 1.4. Late Charge: If payment of any installment is delinquent more than ten days, OSF shall pay a late charge of one and one-half percent (1.5%) of the delinquent installment in addition to the installment then due. An additional late charge of one and one-half (1.5%) of the delinquent installment shall be paid by OSF for every additional 30 days the installment payment is delinquent beyond ten days. 1- OSF Grant and Loan Agreement (April 13, 2001 ) G:\legal\PAUL\OSF\grant and loan agreement.wpd 1.5. Acceleration: In the event that OSF fails to make any payment as provided or breaches this agreement in any other manner, then the outstanding amounts of principal and interest on this loan shall become due and payable immediately, and City may pursue any legal remedy available to it to secure prompt payment of any and all monies owed by OSF. Waiver by City of any one or more breaches shall not be deemed a waiver of the right of City to pursue any legal remedy which it may have with regard to any other breach or breaches. The remedies provided by this paragraph are cumulative and in addition to and independent of any other remedies given City by law. 1.6. Place of payment: Payments shall be made payable to the Ashland, City Hall, Finance Department, 20 East Main Street. Ashland 2. Grant Funds: Subject to the terms and conditions of agreement, City agrees to provide funds to OSF in the a~ conflict between the terms of the OECDD grant agreem~ terms of this agreement shall control. Drawdowns: OSF may not draw down any of the grant u The grant may only be drawn down as needed to pay fo~ loan agreement, of the project. loan has been expended. in the OECDD 3. Use of Grant and Loan Funds: The use of the activities specified in the OECDD loan and ( shall be used for any "Ineligible Activities" a are limited to the the loan or grant --CDD agreements. 4. Unexpended Funds: Any grant or Ioa~ completed or this agreement is term: of the project or termination. OECDD loan and grant agreemer Is shall ling after the project is City within 20 days of completion applied in accordance with the 5. Re are requi! limited to. of ~n and presentations and warranties to City that reements. These include, but are not 5,1. estimate of the cost of the project is $2,300,000. 5.2, $3OO OSF demonstrate funds in an amc for ect. :late of this agreement, OSF has matching funds of project. Before any disbursement of the loan or grant, of the OECDD and the City, that it has obtained when added to the amount of the loan and grant, to pay 6. lnts of O,c ;F covenants to comply with and perform on behalf of the City, without covenants of the City stated in section 6 in the OECDD grant ag ~e covenants stated in the OECDD loan agreement and all of the covenants )SF understands that the requirements of the covenants may only be waived or amended by a written instrument executed by the City. In addition, OSF covenants as follows: 6.1. Operation and Maintenance of the Proiect. By the completion of the project, OSF will have a program, documented to the satisfaction of the City, for the on-going maintenance, operation and replacement, at its sole expense, of the HVAC system and related facilities of 2- OSF Grant and Loan Agreement (April 13, 2001 ) G:\legal\PAUL\OSF\grant and loan agreement.wpd which are part of the project. This program should include a plan for generating revenues sufficient to assure the operation, maintenance and replacement of the HVAC facility during the service life of the project. Upon completion of the project, City shall have exclusive control of all other facilities constructed as a result of the project and shall be responsible for the maintenance, operation and replacement of these facilities. 6.2. Signs and Notifications. OSF shall display a sign, provided by OECDD and place as required by OECDD. OSF shall include on the sig by OECDD. ~such time required 7. OSF Obligations: OSF shall be subject to, and perform City, all other terms, conditions and obligations agreements. These terms, conditions and obligations in, following: n the cost to 7.1. Drawdowns. OSF shall submit drawdown reqi OECDD-approved cash request form. Aggregate Rate" times the "Costs of the Project" as those terms agreements. loan or grant on a the "Participation -'CDD grant and loan 7.2. Disbursement of Grant Drawdown funds by OSF and disbursement shall be receipt of grant vely possible. 7.3. Drawings. OSF shall deliver with the proceeds of the loan or graf as-built drawings from OSF's all facilities constructed of completion per the 7.4. funds account. ~unt. The stablish and maintain a segregated ar disbursed to OSF and matching int. Eai ~n this account shall be credited to this be used to pay the Costs of the Project. 7.5. Ins project is insu unless agrees ~r proje( or any portion thereof, is destroyed and the : s shall be paid to City and shall be applied to the manner as OECDD in its sole discretion shall determine the insurance proceeds shall be used to rebuild the Sales ~nd Encumbrances. OSF may not sell, lease, exchange, transfer or )roperty constituting a part of the project or any interest therein unless of the system, (2) it is worn out, obsolete or, in the reasonable business longer useful in the operation of the project, and (3) such transaction will nc the exclusion from gross income for federal income tax purposes of the inte note pursuant to section 103(a) of the Internal Revenue Code. Proceeds of such sale, lease, exchange, transfer or other disposition which are not used to replace the property up to the amount of such proceeds times the Participation Rate shall be deposited in the loan account and shall be applied to the outstanding balance of the loan. 8. Miscellaneous: 3- OSF Grant and Loan Agreement (April 13, 2001) G:\legal\PAUL\OSF~grant and loan agreement.wpd 8.1 Inspection. City and its agents may, at any and all reasonable times, during the term of this agreement, inspect the project for any purpose arising from the pedormance of this agreement. 8.2 Assigns. The respective successors and assigns of OSF shall be bound to observe the terms of this agreement. 8.3. Records: OSF shall give City and any authorized representative of the City access to and the right to examine all books, records, papers or documents relating to the ect. 8.4. Waiver: Failure of either party to insist upon the covenants and conditions of this agreement shall not relinquishment of such party's right to thereafter the same shall continue in full force and effect. :he terms, as a waiver or but 9. Indemnity. 9.1. Negligence. OSF shall defend and indemnifl demands, encumbrances or litigation arising directly or operation and use of the project, and shall reimburse which it may suffer by reason of such claims, liens, responsible for and shall defend and indemnify out of any injuries to persons or property resu operation of the project. any all claims, liens, OSF's negligence in the e and expense OSF shall be arising ~ the use and 9.2. Contractual Breach. OSF st' demands, encumbrances or liti( with the terms of this agreement o loan and grant agreements, inclu, those nfs. OSF shal suffer such IS, shall not itself to ainst all claims, liens, t or indi out of OSF's failure to comply re to , with the terms of the OECDD and covenants of City in e and expense which it may -- r litigation. Provided, however, OSF City for which City has specificallybound 10. Default: following A default shall occur under any of the any payment within 10 days after it is due; or n( d~ di i0.2. Failure of O~ ~y other obligation contained in this agreement, g obligations of ~ in the OECDD loan and grant agreements, within 30 days after the nature of the default or, if the default cannot be cured within 30 ,re within Iime to commence and pursue curative action with reasonable circumstance listed in the OECDD loan and grant agreements. 10.4. Determination by the City that significant corrective actions are necessary to protect the integrity of the loan and grant, and those corrective actions are not, or will not by made within a reasonable time; or OSF (1) applies for or consents to the appointment of, or the taking of possession by, a receiver, custodian, trustee or liquidator of the Construction or Loan 4- OSF Grant and Loan Agreement (April 13,2001) G:\legal\PAUL\OSF~grantandloanagreement.wpd Funds, (2) admits in writing its inability, or is generally unable to pay its debts as they become due, (3) makes a general assignment for the benefit of its creditors, (4) commences a voluntary case under the Federal Bankruptcy Code (as now or hereafter in effect), (5) is adjudicated a bankrupt or insolvent, (6) files a petition seeking to take advantage of any other law relating to bankruptcy, insolvency, reorganization, winding-up, or composition or adjustment of debt, or (7) fails to controvert in a timely and appropriate manner, or acquiesces in writing to, any petition filed against it in an involuntary case under such Bankruptcy Code; 11. Remedies on Default: In the event of a default, City may take any one following steps: 11.1. Declare the entire balance of the funds loaned interest immediately due and payable. City plus 11.2. Specifically enforce the terms of this 11.3. Pursue any or all of the remedies of State or grant agreements and any other remedies available at include, but are not limited to, termination of the agreem the loan and grant and payment of interest earned on set forth in the ~ loan luity. Such remedies may on or return of City. 12. Amendments: The terms of this agreement, will not be waived, altered, modified, written instrument signed by the parties. agreement and subject to all other agreef 3e fran completion, ~nner except by ,e made a part of this OSF ~F ASHI By. Title ~W. DeBoer By Title Christensen, City Recorder 5- OSF Grant and Loan Agreement (April 13, 2001 ) G:\legal\PAUL\OSF~grant and loan agreement.wpd