I. AUTHORITY AND PURPOSE

Transcription

1 2015 AMENDED AGREEMENT FOR BUSINESS DEVELOPMENT BY KENOSHA COUNTY AND KENOSHA AREA BUSINESS ALLIANCE FOR KENOSHA COUNTY REVOLVING LOAN FUND & BUSINESS PARK DEVELOPMENT This agreement between Kenosha County, (County) a Wisconsin municipal corporation having its principle offices at th Street, Kenosha, WI and Kenosha Area Business Alliance, Inc., (KABA) a Wisconsin nonprofit corporation having its principle offices at th Avenue, Suite 200, Kenosha, WI entered this day of February, I. AUTHORITY AND PURPOSE The parties enter this agreement under all of the authority granted both parties by the State of Wisconsin, including but not limited to that authority for economic and industrial development provided in Section of the current Wisconsin Statutes for the purpose of attracting and retaining business and industry to Kenosha County and providing stable employment opportunities to its residents. The parties adopt the Findings expressed at subsection 59.57(2)(b) in whole, and incorporate those policy reasons for governmental support for economic and industrial development by reference as if fully set forth herein. The Kenosha County Board of Supervisors has adopted Resolution specifically authorizing this agreement. II. This agreement amends the 1/1/1997 agreement between the parties that established the Kenosha County Revolving Loan Fund (CRLF) program which has been administered since that time by KABA. This program attracted numerous new industrial and business entities to Kenosha County which provided thousands of jobs to its citizens. This amendment is to expand the use of existing balance in the CRLF to support development of a business/ light industry park. III. TERM The term of this agreement shall be 15 years. It may be renewed by mutual written agreement of the parties for up to an additional 5 years. IV. The County Revolving Loan Fund Program activities of making loans for attracting new business and encouraging expansion of existing manufacturing and other business is authorized to continue. KABA shall administer it as provided herein. V. BUSINESS PARK DEVELOPMENT AND ADMINISTRATION KABA shall be authorized to use the balance of funds in the CRLF which are on deposit in a segregated account at a financial institution and are not committed, in its discretion, to financially encourage construction and creation of 1

2 one or more municipal business parks and/or municipal industrial parks within the borders of Kenosha County, in the areas to the west of I-94, where fewer such business/industrial parks exist. Such a business park would be created by incentives for a municipality to bring the necessary infrastructure to the park to make building sites with such business park shovel ready for a business owner to build upon for such facilities as manufacturing plants, warehouses, distribution centers, corporate headquarters, and other similar purposes. It is likely that participating municipalities would create a T.I.F. District to generate funds by which to pay for the necessary infrastructure and related costs of a business park. The amount currently available in such CRLF fund is approximately $1,250,000. To accomplish the creation and successful operation of such municipal business and/or industrial parks, KABA is authorized to use such CRLF to: 1. Buy, sell, lease, or obtain and transfer legal title and other legal interest in real estate. Participate in developing the necessary infrastructure by entering into agreements with municipalities for such improvements as sewer, water, grading, storm water controls, roads, utilities and other necessary attributes. Develop, market and improve any such real estate and business park. 2. Engage the services of attorneys, accountants, financial advisers, engineers, civil planners, insurance agents, brokers and other professional services as necessary and useful to build and operate a modern business/industrial park. 3. Use existing KABA loan programs to encourage business owners to locate their business in such business/industrial park, according to the rules and purposes of such loan programs. 4. Segregate proceeds from sales, leases, repayments of the expenditures, etc., for such business/industrial park to the CRLF to fund future loans and similar business park development. VI. REVOLVING LOAN FUND ADMINISTRATION 1. Use of Repayments. Principal and interest repayments to KABA pursuant to the provisions of any loan granted under the terms and conditions of this Agreement shall be available to KABA to cover future loans, KABA administrative costs, or business park development costs made under the terms and conditions of this Agreement. All portions of the County Revolving Loan Funds Program, including principal and interest repaid to KABA, shall be deposited by KABA in KABA'S segregated Kenosha County Revolving Loan Fund Program Account. 2. Assignment of Loans. Loans which are approved and disbursed by KABA per this Agreement shall contain a provision that they are assignable to the County. Should this Agreement be terminated, loans having an outstanding balance shall be assigned by KABA to the County at the option of the County. 3. Limitations, Restrictions and Guidelines on Loans. KABA shall be subject to the following limitations, restrictions, and guidelines in granting of loans under authority of this Agreement: i. Loans granted under authority of this Agreement shall not be for more than fifty (50%) percent of a total development project which could consist of the construction and/or improvement of fixed assets, equipment and related working capital and shall not be for more than $1,000,000. It is the goal of KABA that in no case shall a loan be for less than $50,000. ii. iii. Loans granted under authority of this Agreement shall primarily be granted for the purpose of financing the purchase, construction, and/or improvement of fixed assets. In such cases where the loan is for working capital, the loan amount shall not exceed $500,000. Preference for loans shall be given to loan applicants who: create new manufacturing and/or office jobs which pay a livable wage and provide an appropriate level of benefits; construct expansion facilities; construct new facilities; export goods and services beyond the local 2

3 economy; generate goods and services which meet a specific local need; or increase the competitiveness of the respective business. iv. Loans granted under authority of this Agreement must comply with all lending criteria and contractual requirements of KABA'S Finance Committee. v. Loans granted under authority of this Agreement will be secured by collateral such as: subordinated real estate mortgages, equipment, personal and corporate guarantees, inventory, receivables, and other corporate assets. vi. vii. viii. Loans granted under the authority of this Agreement shall be granted for the purpose, but not limited to, financing the construction and/or improvement of fixed assets, acquisition of furniture, fixtures and equipment, working capital, equity participation, interest subsidies, loan guarantees, and direct loans with deferred options. Loan Terms. Loan terms shall not be longer than twenty (20) years where the loan is for the construction and/or improvement of a fixed asset or equipment. Loan terms shall not be longer than ten (10) years where the loan is for working capital. Loan Interest Rates. The average interest rates for loans granted per authority of this Agreement shall range from fifty (50%) percent of prime at the time of loan approval to three (3) points over prime. However, in no cases shall the rate charged be less than two (2%) percent. The rate may include a sliding rate and provide for the deferral of interest and principal. The determination of interest rates shall be based on: number of jobs generated and/or retained, the pay levels and benefits of the jobs created and/or retained, amount of tax base created, type of business, diversification of local economy, and needs of local economy. VII. COMPENSATION TO KABA KABA shall be entitled to charge a one-time loan fee payable by the loan applicant at the time of loan disbursement of up to two (2%) percent of the total amount of loans granted by KABA under this Agreement. KABA may also establish application, processing and servicing fees to be paid at the time applications are submitted, loans are processed or when servicing is required. The compensation to KABA for administration of the CRLF, as amended, will be a combination of loan fees generated and cost of allocated KABA staff time spent on the CRLF plus actual expenses incurred, all as apportioned in the Administrative Allocation formula approved by the certified public accountants, and reviewed by the Kenosha County Finance Division. This is the same method used since VIII. LOAN DECISIONS The County Board of Supervisors, by the execution of this Agreement, approves the nine (9) member KABA Finance Committee as the administrative board for all individual loan decisions. IX. ADDITIONAL COUNTY ALLOCATIONS TO CRLF The County may, but is not obligated to, make additional financial contributions to KABA for the CRLF program in future years, with appropriate budget resolutions duly passed. 3

4 X. TERMINATION FOR CAUSE If KABA commits a material breach of this agreement, the County may terminate this agreement by providing 30 days written notice thereof to KABA, describing the nature of the material breach and the right to cure such breach within 30 days of the notice. KABA shall take all necessary steps to cure such breach, and provide sufficient documentation of the cure to the County within the time allowed, or the contract will be terminated. During such 30 day right to cure time period, and continuing until the County expressly and in signed writing declares the breach to be cured, KABA may not pay any money for any purpose, forgive any debts or financial obligations, transfer or reduce any financial accounts of any kind or nature, sell or transfer any interest in real estate interest or in contract rights, without the expressed written consent of the County. KABA shall not take any action to the detriment of the County or the CRLF program during such 30 day time period. XI. TERMINATION AT WILL Either party may, for convenience and for no cause, terminate this agreement by 180 days written notice. During such 180 day time period, and continuing until the County expressly and in signed writing declares the release of duties under this section, KABA shall assign and transfer to the County (or to another organization or person the County may direct) all rights and obligations for all money, funds, financial deposits, financial interests, control and management powers, all contracts of any nature under its control for such money, accounts or matters which have any connection or relationship with this agreement. Further, KABA may not pay any money for any purpose, forgive any debts or financial obligations, transfer or reduce any financial accounts of any kind or nature, sell or transfer any interest in real estate or in contract rights or any other item of value arising out of this agreement, without the expressed written consent of the County during such 180 day time period. KABA shall not take any action to the detriment of the County or the CRLF program during such 180 day time period. XII. LAWS AND VENUE Obey All Laws. Each party shall perform its obligations under this Agreement in accordance with the letter and the spirit of applicable Federal, State and Local laws, rules and regulations. Governing Law; Savings Clause - The validity, construction, enforcement and effect of this contract shall be governed by the laws of the State of Wisconsin. All agreements and covenants contained herein are severable, and in the event any one of them shall be held invalid by any competent court or agency, this Contract shall be interpreted as if such invalid covenant was not contained herein, if the court or agency may interpret the remaining contract language in a reasonable manner which is fair to the parties. XIII. INSURANCE 1. KABA agrees to indemnify, hold harmless and defend Kenosha County, its officers, agents and employees from any and all liability including claims, demands, losses, costs, damages and expenses of every kind and description or damage to persons or property arising out of or in connection with or occurring during the course of this Contract where such liability is founded upon or occurring out of the acts or omissions of KABA, its agents or employees. 2. KABA agrees to protect itself and Kenosha County under the indemnity agreement set forth in the above paragraph. KABA will at all times during the terms of this Contract keep in full force and effect minimum insurance policies as noted below, issued by a company or companies authorized to do business in the State of Wisconsin. KABA shall give ten (10) days advance written notice of cancellation or non-renewal of any such insurance policies during the term of this Contract. Kenosha County reserves the right to require higher or lower limits where warranted. 4

5 i. Worker s Compensation insurance as required by Wisconsin Statutes for all employees engaged in work associated with this Contract ii. Commercial general liability insurance for personal and bodily injury and property damage against any claim(s) that might occur in carrying out this Contract, [including professional malpractice; errors and omissions coverage, if the services being provided are professional services], with liability coverage provided for therein in the minimum amount of $300,000 per occurrence/one million dollars ($1,000,000) aggregate for all types of claims, except for property damage of at least $50,000. iii. Motor vehicle insurance for all owned, non-owned and hired vehicles that are used in carrying out the services of this Contract, with minimum one million dollars ($1,000,000) combined single limit for automobile liability and property damage. iv. Bonds or malfeasance insurance to protect Kenosha County and the financial assets handled by KABA under this agreement from theft, misappropriation and fraud, in the amount of $2,000,000. v. Coverage afforded shall apply as a primary with Purchaser named as an additional insured for actions and/or omissions performed pursuant to this Contract. 3. Upon execution of this Contract, KABA shall furnish a certified copy of the certificate of insurance to Kenosha County as evidence of coverage, indicating on the certificate that Kenosha County is an additional insured and a certificate holder. 4. KABA shall not discontinue or change liability insurance policies or indemnity bonds in effect during any part of this contract without buying tail end or no-gap insurance to cover potential claims that may have occurred during the term of this agreement. 5. The hold harmless, indemnity and insurance provisions of this Contract shall survive the termination of this Contract and shall remain operative until the time that all potential claims or potential civil actions by the parties or by third parties shall expire under existing law. 6. KABA shall notify Kenosha County immediately upon the commencement of any litigation against KABA by mailing a copy of the Summons and Complaint or other moving papers to Kenosha County within seven (7) days of receipt. In the event any actions, suit or other proceeding are brought against Kenosha County, upon any matter herein indemnified against, Kenosha County shall tender defense to KABA and cooperate with KABA s attorneys in the defense of the action, suit or other proceeding. If KABA does not accept such defense of action, then KABA will pay the actual reasonable attorney fees and expenses the County incurs in such defense. XIV. NOTICES All notices provided for in this Agreement shall be given by personal delivery or sent by First Class U.S. Mail to the address of the party shown below or to such new address with respect to either party as such party shall notify the other in writing; such notices shall be considered given when mailed: To Kenosha Area Business Alliance, Inc., at: Kenosha Area Business Alliance, Inc th Avenue, Suite 200 Kenosha, Wisconsin Attention: President To Kenosha County at: County of Kenosha th Street Kenosha, Wisconsin Attention: County Executive 5

6 XV. SUB-CONTRACTING KABA agrees that Kenosha County must approve any sub-contract of the services to be provided herein. If KABA obtains services for any part of this Contract from another vendor, KABA is responsible for the sub-contractor's fulfillment of the terms of the contract. KABA shall give prior written notification of such vendor to Kenosha County for written approval. XVI. INDEPENDENT CONTRACTOR No relationship of employer and employee; joint venture or partnership, is created by this Agreement. It is understood that KABA will act hereunder as an independent contractor and shall not have any claim under this agreement or otherwise against Kenosha County for vacation pay, sick leave, retirement benefits, Social Security, Worker's Compensation, disability, unemployment insurance benefits, or employee benefits of any kind. Kenosha County shall neither have nor exercise any control or direction over the means or methods by which KABA shall perform the work and functions. KABA agrees to perform said work and functions at all times, in strict accordance with currently approved methods and practices in the field of service as described within. The sole interest of Kenosha County is to insure that the services contemplated by this Agreement shall be performed and rendered in a professional, competent, efficient, and satisfactory manner. XVII. RECORD RETENTION KABA shall retain all of its lending and administrative records which are relevant to this Agreement for a period of seven (7) years. Said period shall commence to run from the date final action was taken denying any loan in the case of loans which were not granted and from the date final payment was made in the case of loans which were approved and disbursed. In the event KABA shall cease to exist or cease to function as a viable legal entity, then KABA shall, at the County s option, turn its relevant records related to this program over to the County for safekeeping. XVIII. ETHICS POLICY CONFLICT OF INTEREST, PUBLIC RECORDS AND ETHICS LAW It is agreed and understood by all parties to this contract that: 1. In addition to ethical standards set forth in Wisconsin Statutes section for all county employees and officials [either elected or appointed] Kenosha county has adopted an ethics policy that is applicable to county employees in conducting county business. The policy may be reviewed at: Chapters 19 and 20 of the Municipal Code of Kenosha County. It is further understood that all county employees and officials [either elected or appointed] are prohibited from engaging in any criminal conduct contrary to Wisconsin Statutes sections involving misconduct in public office and involving a private interest in a public contract. 2. This ethics policy is intended to ensure that public trust in Kenosha county government is maintained and that decisions affecting the county and its citizens are made fairly and impartially for the benefit of all citizens and not for personal gain. This policy precludes the misuse or misappropriation of county property or funds for personal use or otherwise, use or disclosure of confidential information for personal gain or otherwise, elimination of conflicts of interests, receipt of gifts or favors or other considerations of value by county employees, the use of the employee s public position to influence or gain unlawful benefits or to influence or gain advantages or privileges for the employee, and the conducting of personal business or campaigning during working hours. 3. This policy, furthermore, requires employees to disclose and report to the proper authorities any violation of this policy or State Statute by either other employees or by any non-employee or citizen seeking to or aiding or abetting in efforts to circumvent this policy. Any employee failing to make such disclosure or report is 6

7 subject to discipline. This contract also requires that any party contracting with Kenosha County also report any such violation to either the District Attorney or Corporation Counsel for Kenosha County. 4. By executing this contract, each party certifies that it knows of no conflicts of interest or appearance of a conflict or appearance of an impropriety on the part of any current or former county official or employee who may have had a role on deciding which proposal or bid will be accepted, and 5. By executing this contract, each party certifies that no attempt has been made by anyone on behalf of the party submitting a proposal or bid to directly or indirectly illegally influence the awarding of a contract by promise of or delivery of any consideration or anything of value to a current or former County official or employee or family or household member of a current or former County official or employee, or in any other manner contrary to law, and 6. The parties acknowledge that Kenosha County is a municipal corporation legally bound to comply with the Wisconsin Open Meetings and Public Records laws and that as such, unless otherwise allowed for by law, all aspects of this agreement are subject to open discussion and disclosure are a matter of public record. It is furthermore agreed to that no party will take any action to obstruct the operation of these laws. If records are created or maintained or in the custody of the provider, as an independent contractor, they, along with the raw data used to create the record, are, nevertheless, public records. Within legal constraints related to confidentiality and privacy protection, such records must be made immediately available to the public upon request and in the format in which they were created. Provider agrees to hold the County harmless and to indemnify the County for all costs, fees, including all attorney fees and judgments and damages of whatever kind for which the County may be held liable due to the provider s failure to comply with the Wisconsin Public Records and Open Meetings laws. 7. That any subsequent finding of a violation of either the County s ethics policy or Wisconsin Statutes sections, 19.59, and by any party or any agent of any party acting either alone or acting in concert with a current or former Kenosha County official or employee may result, at the sole option of Kenosha County, in this agreement being declared null and void and / or may result in the party violating this policy being debarred from submitting proposals, bids or contracting with Kenosha County for a specified period of time in the future. XIX. ANNUAL AUDITS KABA shall arrange for and have an annual audit made by a Certified Public Accountant, at its cost and expense, to provide an accounting of any and all funds which are related to this Agreement. KABA shall provide the County with a copy of its audit within thirty (30) days after its receipt by KABA. Records which are the subject of an audit, if not required to be retained for a longer period of time by another provision of this Agreement, shall be retained for ten (10) years after final action has been taken with respect to any audit finding. XX. QUARTERLY REPORTS KABA will prepare and furnish the County Finance Committee, the County Executive and the County Board with quarterly reports which shall include a financial report of all loans, purchases, sales, leases or other transactions made under this program and all funds appropriated under the terms and conditions of this Agreement, and their current status. XXI. CONTRACT AMENDMENTS This Agreement may be amended only by written agreement between the County and KABA. XXII. COMPLETE AGREEMENT This document represents the full and complete Agreement and understanding of the County and KABA and supersedes all prior written and unwritten agreements and understandings, if any. 7

8 COUNTY OF KENOSHA KENOSHA AREA BUSINESS ALLIANCE, INC. Jim Kreuser, County Executive Date: Frank Unick, Chairman Date: Mary Schuch-Krebs, County Clerk Date: Todd Battle, President Date: 8