HomeMy WebLinkAboutResolutions - 2020.08.06 - 33475MISCELLANEOUS RESOLUTION #20304 August 6, 2020
BY. Commissioner Helaine Zack, Chairperson, Finance and Infrastructure Committee
IN RE: ECONOMIC DEVELOPMENT AND COMMUNITY AFFAIRS — ACCEPTANCE OF THE
MICHIGAN ECONOMIC DEVELOPMENT CORPORATION GRANT FOR THE MICHIGAN SMALL
BUSINESS RESTART PROGRAM
To the Oakland County Board of Commissioners
Ladies and Gentlemen:
WHEREAS the COVID-19 outbreak and numerous Executive Orders by the Governor of the State of
Michigan have caused significant economic distress in the business community; and
WHEREAS the Economic Development and Community Affairs department has been working with the
Michigan Economic Development Corporation (MEDC) to obtain a grant; and
WHEREAS the Michigan Small Business Restart Program (the "Restart Program') grant provides funding
opportunities for businesses and nonprofits with 50 or fewer employees located in Oakland County; and
WHEREAS businesses must also demonstrate that they are part of an industry or nonprofit that has been
impacted by the COVID-19 emergency and suffered an income loss as determined by eligibility
requirements of the Michigan Strategic Fund (MSF); and
WHEREAS businesses need working capital to support payroll expenses, rent, mortgage payments, utility
expenses or other similar expenses; and
WHEREAS at least 30 percent of the funds awarded under this program will be provided to women -owned,
minority-owned or veteran -owned eligible businesses; and
WHEREAS the funds coming from the MEDC are from the State of Michigan's allocation and appropriation
of the Coronavirus Aid, Relief, and Economic Security (CARES) Act; and
WHEREAS the 2020 grant program funding period is March 1, 2020 to December 30, 2020, and
WHEREAS the 2020 grant approval is in the amount of $11,045,455; and
WHEREAS this grant application has completed the Grant Review Process in accordance with
Miscellaneous Resolution #19006; and
WHEREAS Oakland County will issue sub -grant agreements with an award amount of up to $20,000 to
eligible small businesses whose application will be approved by the Recovery Oversight Grant Committee;
and
WHEREAS Oakland County Corporation Counsel has reviewed and approved the attached Michigan Small
Business Restart Program Sub -Grant Agreement.
NOW THEREFORE BE IT RESOLVED that the Oakland County Board of Commissioners approves the
grant acceptance of the Michigan Small Business Restart Program in the amount of $11,045,455 from the
Michigan Economic Development Corporation.
BE IT FURTHER RESOLVED that the Oakland County Board of Commissioners approves the Michigan
Small Business Restart Program Sub -Grant Agreement and authorizes its Chairperson to execute this
agreement.
BE IT FURTHER RESOLVED that this grant does not obligate the County to any future commitment and
the program shall end once the granted funds are fully disbursed.
BE IT FURTHER RESOLVED that the FY 2020 budget is amended as follows:
MSF — SMALL BUSINESS RESTART (#29244)
GR0000000946 Activity: GLB Analysis: GLB Budget Ref: 2020
Revenue
1090101 -133095-610313
Exoenditures
1090101-133095-731598
Federal Operating Grants
Total Revenue
Regranting Program
Total Expenditures
FINANCE AND INFRASTRUCTURE COMMITTEE:
Motion carried unanimously on a roll call vote with Long absent.
FY 2020
$ 11.045.455
S 11 045 45.5
$ 11.045.455
$ 11 045 455
Chairperson, on behalf of the Finance and Infrastructure Committee, I move the adoption of the foregoing
resolution.
Commissioner Helaine ZacV District #18
Chairperson, Finance and Infrastructure
Committee
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MICHIGAN SMALL BUSINESS RESTART PROGRAM
GRANT AGREEMENT
CASE - 305431
THIS GRANT AGREEMENT (this "Agreement"), effective as of July 28, 2020 (the "Effective
Date'), is between the Michigan Strategic Fund (the "MSF"), whose address is 300 North Washington
Square, Lansing, Michigan 48913, and Oakland County Economic Development and Community
Affairs, a local economic development unit within the county of Oakland, whose address and principal
office is 2100 Pontiac Lake Road, Waterford, Michigan 48328, and whose DUNS # is 136200362 (the
"Grantee'l. As used in this Agreement, the MSF and the Grantee are, individually, a "Party" and,
collectively, the "Parties".
RECITALS
A. In the Coronavirus Aid, Relief, and Economic Security Act, Public Law 116-136, 15 USC
116 (the "CARES Act"), the US Congress appropriated funds to the US Department of Treasury to be
allocated and disbursed to states, including Michigan, to among other things, assist small businesses
navigating the impacts of COVID-19.
B. The Michigan Legislature passed, and the Governor signed into law the legislation being
PA 123 of 2020, which appropriates CARES Act funding through various principal State departments
and agencies therein, including the MSF.
C. At a meeting of the MSF Board on July 7, 2020, the MSF Board (i) approved the creation
of the Michigan Small Business Restart Program (the "Restart Program") to disburse CARES Act
funding to economic development organizations to deliver and administer grants to Eligible Businesses
who have realized a significant financial hardship as a result of the COVID-19 pandemic; and (ii)
approved a Restart Program grant award to the Grantee in the amount of up to Eleven Million Forty
Five Thousand Four Hundred Fifty Five Dollars ($11,045,455.00) to be disbursed under the terms of
this Agreement (the "Grant"). The Grant is funded under the Catalog of Federal Domestic Assistance
#21.109, as such Grantee is considered a sub -recipient of federal funds.
D. Under the control and direction of the MSF Board, staff of the Michigan Economic
Development Corporation, a public body corporate (the "MEDC"), provides administrative services for
the MSF.
In consideration of the recitals and promises in this Agreement, the Parties agree:
ARTICLE II
DEFINITIONS
Section 1.1 Defined Terms. Except as otherwise defined in this Agreement, and except for
proper nouns, all capitalized terms in this Agreement shall have the respective meanings set forth on
Exhibit A, which contains the defined terms for this Agreement.
Section 1.2 Construction of Certain Terms. Unless the context of this Agreement
otherwise requires: (i) words of any gender include each other gender; and (ii) words using the singular
or plural number also include the plural or singular number.
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ARTICLE 111
GRANT
Section 2.1 Grant Commitment. Subject to the terms and conditions of this Agreement, and
in reliance upon the representations and warranties of the Grantee set forth in this Agreement, the MSF
agrees to make, and the Grantee agrees to accept, the Grant.
Section 2.2 Grant Manaaer. The MSF Fund Manager shall designate a Grant Manager to
administer this Agreement and monitor the performance of the Grantee and the disbursement of the
Grant funds under this Agreement. The Grant Manager may be changed at the discretion of the MSF
Fund Manager. The MSF Fund Manager shall give the Grantee notice of the designated Grant Manager,
and any change. The initial Grant Manager is Shane Schamper, whose email address is
schamoers(a)michiaan.orq.
Section 2.3 Grant Disbursement. Subject to the terms and conditions of this Agreement,
including that the absence of a Default or Event of Default, payment of up to the full amount of the Grant
shall be made to the Grantee in one disbursement, as soon as institutionally possible for the MSF, after
this Agreement is fully signed by the Parties.
Section 2.4 Grantee Duties and Sub -Grant Duties. In addition to all other obligations under
this Agreement, the Grantee agrees to undertake, perform, and complete all the following services:
(a) Sub -Grants. Grantee shall require the Eligible Businesses to submit a fully complete
application for a grant under the Restart Program, and Grantee shall enter into written grant agreements
or other written certifications with the Eligible Businesses to effectuate redistribution of all Grant funds
received by Grantee (less the Administrative Amount, as may be applicable) to Eligible Businesses in
the Geographic Coverage Area to provide working capital for Eligible Expenses (the aforementioned,
individually, a "Sub -Grant' and collectively, the "Sub -Grants").
(b) Administrative Amount. Grantee may retain the Administrative Amount only for purposes
of administering this Agreement and/or the redistribution of the applicable Grant funds to Eligible
Businesses as required by this Agreement.
(c) Process. Grantee shall develop and execute a systematic and strategic process to
identify the Eligible Businesses and evaluate which shall be awarded Sub -Grants.
(d) Certain Percentaaes. Not less than thirty percent (30%) of the Grant funds (less the
Administrative Amount, as may be applicable) shall be distributed as fairly as possible as deemed by
the Grantee among Eligible Businesses that are one or more, or any combination, of Women -Owned,
Minority -Owned and Veteran -Owned.
(e) Sub -Grant Criteria. Each Sub -Grant must meet all the following qualifications:
(i) not exceed $20,000 (subject to the provisions of sub -Section (F) of the
definition of Eligible Business set forth on Exhibit A);
(ii) be executed with and to the benefit of an Eligible Business;
(iii) contain provisions requiring that the Sub -Grant funds may only be used
by the recipient Eligible Business for Eligible Expenses; and
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(iv) contain provisions requiring the recipient Eligible Business to provide the
following reporting to the Grantee, including in a sufficient manner for the Grantee to
report to the Grant Manager at the times and in the manner required by this Agreement:
(A) a brief description of the Eligible Expenses for which the Sub -
Grant funds have been or will be used;
(B) contain provisions requiring the recipient Eligible Business to
provide the information necessary for the Grantee to report the
required information to Grant Manager as set forth in Section
2.4(g) through 2.4(i); and
(C) contain provisions requiring the recipient Eligible Business to
provide any such other and/or additional information to, and upon
the request of, any one or combination of, the Grantee, the MSF,
any State representative, any representative of the United States
Treasury or Government Accountability Office, or the MEDC, as
may be required by the CARES Act and any ancillary rules,
regulations, audits, or other ancillary reviews thereof;
(D) contain provisions requiring the recipient Eligible Business to
retain and produce, and provide access to all Permitted
Representatives, upon request thereof, any records arising out of
or related to the Sub -Grant, including without limitation, records
arising out of or related to, and supporting the Eligible Business'
use of the Sub -Grant funds it has received from the Grantee, all
as more particularly described in Section 8.3 of Exhibit B.
(f) Authorized Sub -Grants and Distributions. Grantee shall administer the Sub -Grants to
ensure efficient and responsible distribution of Grant funding to Eligible Businesses and shall endeavor
to distribute the Sub -Grant funds as soon as institutionally possible for the Grantee, and in any event,
(i) all Sub -Grant funds shall be authorized under agreement with each Eligible Business no later than
the September 30, 2020, and (ii) all Sub -Grant funds shall be distributed to each Eligible Business no
later than December 30, 2020.
(g) Monthlv Reporting. Until all the Sub -Grant funds are distributed by the Grantee to each
of the Eligible Businesses, in order for the MSF to provide the required monthly reporting under the
Restart Program to the Michigan legislature, the Grantee shall provide to the Grant Manager on each
of August 10, 2020, September 10, 2020, October 10, 2020, November 10, 2020, and December 10,
2020, a spreadsheet with a detailed list of the names of all Eligible Businesses that received Sub -
Grants, the corresponding amount of each respective Sub -Grant, a brief description of the Eligible
Expenses for which the amount of the Sub -Grant has been or will be used, the amount then actually
distributed by the Grantee to each Eligible Business, and any other pertinent information thereto. The
Grantee and the Grant Manager shall collaborate on the form and other content for such spreadsheet
deemed satisfactory to the Grant Manager.
(h) Final Distribution Report. To the extent there are remaining Sub -Grant funds that are
actually distributed by the Grantee to Eligible Businesses from and after December 10, 2020 through
December 30, 2020, the Grantee shall provide the spreadsheet with the information as set forth in
Section 2.4(g) to the Grant Manager no later than January 10, 2021; and
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(i) Annual Proaress Report. Notwithstanding anything to the contrary, no later than October
10, 2020, the Grantee shall provide the following information required of the MSF to provide an annual
report to the Michigan legislature under the Act (see MCL 125.2009) for the period of October 1, 2019
through September 30, 2020, as applicable to the Grantee and for each Eligible Business:
(i) the amount of financial support received other than State resources;
(ii) the total committed, and the actual number of, jobs created, and the
average annual salary of any jobs created;
(iii) the total committed, and the actual number of, jobs retained, and the
average annual salary of retained jobs; and
(iv) the total actual amount of investment.
ARTICLE III
REPRESENTATIONS AND COVENANTS OF THE GRANTEE
The Grantee represents and warrants to the MSF:
Section 3.1 Oraanization. The Grantee is a duly organized local economic development
organization and has the power and authority to enter into and perform its obligations under this
Agreement.
Section 3.2 Grantee Authority. The execution, delivery and performance by the Grantee of
this Agreement has been duly authorized and approved by all necessary and proper action on the part
of the Grantee and will not violate any provision of law, or result in the breach, be a default of, or require
any further consent under any of the Grantee's organizational and governing documents; or any
agreement or instrument to which the Grantee is a party, or by which the Grantee or its property may
be bound or affected. This Agreement is valid, binding, and enforceable in accordance with its terms,
except as limited by applicable bankruptcy, insolvency, moratorium, reorganization or other laws or
principles of equity affecting the enforcement of creditors' rights generally or by general principles of
equity.
Section 3.3 Consent. Except as has been disclosed in writing to the MSF, or the Grant
Manager, no consent or approval is necessary from any governmental or other entity, except the MSF,
as a condition to the execution and delivery of this Agreement by the Grantee or the performance of
any of its obligations under this Agreement.
Section 3.4 Full Disclosure. None of this Agreement, the Application, or any written
statements or certificates furnished by the Grantee to the MEDC or the MSF in connection with the
making of the Grant and Agreement contain, or shall contain, any untrue statement of material fact, or
to the best of the Grantee's knowledge, omit or shall omit any material fact necessary to make the
statements true. There are no undisclosed facts, which materially adversely affect or, to the best of the
Grantee's knowledge, are reasonably likely to materially adversely affect the properties, business, or
condition (financial or otherwise) of the Grantee or the ability of the Grantee to perform its obligations
under this Agreement.
Section 3.5 Compliance with Laws. To its knowledge, the Grantee is not and will not during
the Term be in material violation of any laws, ordinances, regulations, rules, orders, judgments, decrees
or other requirements imposed by any governmental authority to which it is subject and will not
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knowingly fail to obtain any licenses, permits or other governmental authorizations necessary to the
ownership of its properties or to the conduct of its business, which violation or failure to obtain are
reasonably likely to materially and adversely affect its business, profits, properties or condition (financial
or otherwise).
Section 3.6 Prohibited Use of Grant Disbursements. The Grantee shall not use any Grant
funds for the development of a stadium or arena for use by a professional sports team or development
of a casino or property associated or affiliated with the operation of a casino as prohibited by the Act
(see MCL 125.2088c(3)(a) and (b)), or to induce the Grantee, a qualified business, or small business
to leave the State, or to contribute to the violation of internationally recognized workers' rights, of
workers in a country other than the US, or to fund an entity incorporated in a tax haven country, as
prohibited by the Act (see MCL 125.2088c(4)(c), (d), and (e)).
Section 3.7 Criminal or Civil Matters. The Grantee affirms that to the best of its knowledge
that it or its Affiliates, subsidiaries, officers, directors, managerial employees, and any person who,
directly or indirectly, holds a pecuniary interest in the Grantee of Twenty percent (20%) or more: (i) do
not have any criminal convictions incident to the application for or performance of a state contract or
subcontract; and (ii) do not have any criminal convictions or have not been held liable in a civil
proceeding, that negatively reflects on the person's business integrity, based on a finding of
embezzlement, theft, forgery, bribery, falsification or destruction of records, receiving stolen property,
or violation of state or federal antitrust statutes.
Section 3.8 Conflict of Interest. The Grantee affirms that there exists no actual or potential
conflict of interest between the Grantee, the Grantee's Key Personnel or its Key Personnel's family, its
business, or any financial interest and the performance by the Grantee under this Agreement. The
Grantee affirms that it has, and during the Term, will have internal procedures in place to discover and
internally manage any conflicts of interest between the Grantee's Key Personnel, its Key Personnel's
family's, or business' financial interests and its activities under the Agreement. In the event of a change
in its business or financial interests or the business and financial interests of Key Personnel or Key
Personnel's family, or activities under this Grant, Grantee will inform the MSF regarding possible
conflicts of interest that may arise as a result of such change that would conflict with the Grantee's
performance of its obligations under this Agreement or otherwise create the appearance of impropriety
with respect to this Agreement. Grantee agrees that conflicts of interest shall be resolved to the MSF's
satisfaction. As used in this paragraph, "conflict of interest" shall include, but not be limited to, conflicts
of interest that are defined under the laws of the State of Michigan.
The Grantee further affirms that neither the Grantee nor their officers, directors, managers, and
members, or employees, have accepted, shall accept, have offered, or shall offer, directly or indirectly,
anything of value to influence the MSF, MEDC, its Executive Committee and their respective directors,
participants, officers, agents and employees. Grantee also affirms that neither Grantee nor its Affiliates
or their officers, directors, managers, and members or their employees has paid or agreed to pay any
person, other than bona fide employees and consultants working solely for Grantee or its Affiliates, any
fee, commission, percentage, brokerage fee, gift or any other consideration contingent upon or resulting
from the execution of this Agreement.
Section 3.9 State Required Terms. The Grantee shall comply with its representations,
warranties, and obligations as required and set forth in Exhibit B.
Section 3.10 Discharqe of Obligations. Unless contested in good faith and discharged by
appropriate proceedings, the Grantee shall promptly pay and discharge all taxes, assessments, and
governmental charges lawfully levied or imposed upon it (in each case before they become delinquent
and before penalties accrue).
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Section 3.11 Chanae of Leaal Status. The Grantee shall (a) give the MSF written notice of
any change in its name, its state organizational identification number, if it has one, its type of
organization, its jurisdiction of organization, and (b) not make any change in its legal structure that
would, as a matter of law, affect its surviving obligations under this Agreement, without the prior written
consent of the MSF, which consent shall not be unreasonably withheld.
Section 3.12 Records Access. As the Grant requires the expenditure of in excess of Seven
Hundred Fifty Thousand Dollars ($750,000) of federal funding in 2020, the Grantee is subject to the
Single Audit Act of 1984, as may be amended from time to time. In addition to all other obligations
hereunder, the Grantee shall provide a copy of this audit to the MSF promptly upon its completion.
Further, upon the request from the Grant Manager, Grantee shall provide all records related to this
Agreement and the Grant, including, without limitation, a copy of the fully signed and completed Eligible
Business application to the Restart Program, Sub -Grant, and any documentation and/or reporting in
support thereof. This Section shall survive the end of the Term for a period of seven (7) years.
Section 3.13 Unused Funds. Any Grant funds in the possession or control of the Grantee
(other than Administrative Amount, as applicable) that are: (i) not authorized under agreement between
the Grantee and each Eligible Business by September 30, 2020, shall be returned by the Grantee to
the MSF immediately after September 30, 2020, and (ii) not actually distributed by the Grantee to each
Eligible Business by December 30, 2020, shall be returned by the Grantee to the MSF immediately after
December 30, 2020.
ARTICLE IV
REPRESENTATIONS AND COVENANTS OF THE MSF
The MSF represents and warrants to the Grantee:
Section 4.1 Oraanization. The MSF is a public body corporate and politic within the
Department of Labor and Economic Opportunity of the State of Michigan created under the Act. The
MSF has the power and authority to enter into and perform its obligations under this Agreement.
Section 4.2 Consent. Except as disclosed in writing to the Grantee or as otherwise provided
by law no consent or approval is necessary from any governmental authority as a condition to the
execution and delivery of this Agreement by the MSF or the performance of any of its obligations under
this Agreement. This Agreement is valid, binding, and enforceable in accordance with its terms, except
as limited by applicable bankruptcy, insolvency, moratorium, reorganization or other laws or principles
of equity affecting the enforcement of creditors' rights generally or by general principles of equity.
ARTICLE V
DEFAULT, SUSPENSION AND TERMINATION, AND REPAYMENT PROVISIONS
Section 5.1 Default. Suspension and Termination. Notwithstanding anything to the
contrary, the MSF's obligation to disburse any portion of the Grant shall automatically be suspended,
and this Agreement may be terminated, at the option of the MSF, upon the occurrence, and during the
continuance, of any one or more of the following events or conditions (each an "Event of Default"),
unless a written waiver is provided by the MSF:
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(a) any representation made by the Grantee in support of this Agreement was incorrect at
the time that such representation was made in any material respect, including without limitation, any
information included in a Progress Report or any other required report hereunder, or the representations
and covenants set forth in Article III;
(b) any material failure by the Grantee to comply with any of the terms, covenants and
conditions on its part to be performed under this Agreement, including without limitation, failure to
comply with any of the terms, covenants and conditions under Article III, or failure to submit the monthly
report, the Progress Reports or any other required report hereunder when due; and such failure
continues for a period of thirty (30) calendar days, or such longer period of time as may be designated
by the MSF Fund Manager;
(c) the Grantee is in default, violation, breach, or non-compliance, of any kind or nature
under any agreement with, or requirement of the MEDC, or any department or agency within the State;
and such occurrence continues for a period of thirty (30) calendar days, or such longer period of time
as may be designated by the MSF Fund Manager;
(d) any voluntary bankruptcy or insolvency proceedings are commenced by, or against, the
Grantee, with any such proceedings against the Grantee not being set aside within Sixty (60) calendar
days from the date of institution thereof.
Section 5.2 Reoavment.
(a) Event of Default. Upon the occurrence of an Event of Default under Section 5.1, and
after the expiration of any cure period provided therein or later as otherwise may be determined by the
MSF Fund Manager, the Grantee shall repay the MSF an amount equal to One Hundred percent (100%)
of the Grant funds then paid to the Grantee.
(b) Recovery by the Grantee. In the event the Grantee receives repayment for any reason,
voluntarily or involuntarily, of any portion of any Sub -Grant funds from or on behalf of any Eligible
Business, the amount received less reasonable costs of collection, if any, shall be repaid to the MSF
within thirty (30) calendars of receipt by the Grantee.
Section 5.3 Available Remedies. No remedy described in this Agreement is intended to be
the sole and exclusive remedy available to the MSF, and each remedy shall be cumulative and in
addition to every other provision or remedy given herein or now or hereafter existing at law, in equity,
by statute or otherwise. The Grantee shall also pay all costs and expenses, including, without limitation,
reasonable attorney's fees and expenses incurred by the MSF in collecting any sums due the MSF
under this Agreement, in enforcing any of its rights under this Agreement, or in exercising any remedies
available to the MSF.
ARTICLE VI
MISCELLANEOUS
Section 6.1 Notice. Any notice or other communication under this Agreement shall be in
writing and sent by e-mail, or fax, or first class mail, postage prepaid, or by courier to the respective
Party at the address listed at the beginning of this Agreement or such other last known addresses, fax
numbers or e-mail accounts, and shall be deemed delivered: (i) one business day after an e-mail, fax
or courier delivery or (ii) two business days after a mailing date.
Section 6.2 Entire Aareement. This Agreement, together with the Exhibits, sets forth the
entire agreement of the Parties with respect to the subject matter, and supersedes all prior agreements,
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understandings and communications, whether written or oral, with respect to the subject matter of this
Agreement.
Section 6.3 Counterparts: Facsimile/Pdf Signatures. This Agreement may be signed in
counterparts and delivered by fax or in .pdf form or other electronic format, and in any such
circumstances, shall be considered one document and an original for all purposes.
Section 6.4 Severabilitv. All the clauses of this Agreement are distinct and severable and,
if any clause shall be deemed illegal, void, or unenforceable, it shall not affect the validity, legality, or
enforceability of any other clause or provision of this Agreement. To the extent possible, the illegal, void,
or unenforceable provision shall be revised to the extent required to render the Agreement enforceable
and valid, and to the fullest extent possible, the rights and responsibilities of the Parties shall be
interpreted and enforced to preserve the Agreement and the intent of the Parties. Provided, if
application of this section should materially and adversely alter or affect a Party's rights or obligations
under this Agreement, the Parties agree to negotiate in good faith to develop a structure that is as nearly
the same structure as the original Agreement (as may be amended from time to time) without regard to
such invalidity, illegality or unenforceability.
Section 6.5 Captions. The captions or headings in this Agreement are for convenience only
and in no way define, limit or describe the scope or intent of any provisions or sections of this
Agreement.
Section 6.6 Governing Law. This Agreement is a contract made under the laws of the State,
and for all purposes shall be governed by, and construed in accordance with, the laws of the State.
Section 6.7 Relationship between Parties. The Grantee and its officers, agents and
employees shall not describe or represent themselves as agents of the State, the MSF, or the MEDC
to any individual person, firm, or entity for any purpose.
Section 6.8. Successors and Assians. The MSF may at any time assign its rights in this
Agreement. The Grantee may not assign its rights or obligations under this Agreement without the prior
written consent of the MSF. The terms and conditions of this Agreement shall be binding upon and
inure to the benefit of the Parties and their respective successors and permitted assigns.
Section 6.9 Waiver. A failure or delay in exercising any right under this Agreement will not
be presumed to operate as a waiver unless otherwise stated in this Agreement, and a single or partial
exercise of any right will not be presumed to preclude any subsequent or further exercise of that right
or the exercise of any other right.
Section 6.10 Termination of Aareement. Except as to terms of this Article VI and Exhibit A,
which shall survive indefinitely and the provisions of Sections 3.11, 5.2 and 5.3, which shall survive until
all amounts due the MSF are paid in full, and except as to other terms and conditions which shall survive
as provided in this Agreement, this Agreement shall terminate at the end of the Term. Provided
however, any claims arising out of an Event of Default which event occurred during the Term shall be
brought within seven years (7) years after the end of the Term of the Grant.
Section 6.11 Amendment. This Agreement may not be modified or amended except pursuant
to a written instrument signed by the Grantee and the MSF Fund Manager.
Section 6.12 Publicity. At the request and expense of the MSF or the MEDC, the Grantee
will cooperate with the MSF or the MEDC to promote the Restart Program through one or more of the
placement of a sign, plaque, media coverage or other public presentation acceptable to the Parties.
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The Parties have executed this Agreement effective on the Effective Date.
GRANTEE
By: David T. Woodward
Its: Chairman
MICHIGAN STRATEGIC FUND
By: Mark Morante
Its: Fund Manager
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EXHIBIT A
DEFINED TERMS
(a) "Act" means the Michigan Strategic Fund Act, MCL 125.2001 et seq., which authorized
the creation of other programs or activities, including the Restart Program.
(b) "Administrative Amount' means an amount of up to five percent (5%) of the Grant. The
Administrative Amount may only be used by the Grantee for the purpose of administering this
Agreement and/or the redistribution of the applicable Grant funds to Eligible Businesses as required by
this Agreement.
(c) "Affiliate' means, as applied to any person, any other person directly or indirectly
controlling, controlled by, or under common control with, that person. For the purposes of this definition,
"control' (including, with correlative meanings, the terms 'controlling", "controlled by" and "under
common control with"), as applied to any person, means the possession, directly or indirectly, of the
power (i) to vote at least 50% of the equity (or such lesser percentage which is the maximum allowed
to be owned by a foreign corporation in a particular jurisdiction or such lesser percentage provided the
operational control is held by such other person or entity) having the power for the election of directors
or other management of such person or (ii) to direct or cause the direction of the management and
policies of that person, whether through equity ownership, or by contract or otherwise.
(d) "Agreement' means this Agreement, including the Exhibits to this Agreement.
(e) "Auditor General' means the auditor general of the State of Michigan.
(f) "Confidential Information" has the meaning set forth in Section B.2 of Exhibit B.
(g) "Default' means an event which, with the giving of notice or passage of time or both,
would constitute an Event of Default.
(h) "Effective Date' has the meaning set forth in the preamble.
(i) "Eligible Business" means a company that meets all the following requirements:
(A) is physically located in the Geographic Coverage Area;
(B) has 50 employees or less on a worldwide basis;
(C) has demonstrated to the Grantee that it is affected by the COVID-19
emergency;
(D) has demonstrated to the Grantee that is has incurred income loss as a
result of the COVID-19 emergency;
(E) has demonstrated to the Grantee that it needs working capital for Eligible
Expenses;
(F) has affirmed to the Grantee that it has not received or been approved to
receive a grant under the Michigan Small Business Relief Program
created by the MSF on March 19, 2020 ("Prior MSBRP Sub -Grant').
Provided however, the foregoing affirmation in this sub -section (F) shall
be deemed to include an Eligible Business which previously received or
has been approved to receive a Prior MSBRP Grant, limited however, to
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such Eligible Business receiving a Sub -Grant amount under the Restart
Program, which together with a Prior MSBRP Grant shall not exceed an
amount equal to Twenty -thousand and 00/100 dollars ($20,000), but only:
(x) to the extent that the provisions of Michigan Public Act 123 of 2020
have been directly amended, restated or repealed (or amended, restated,
or repealed by operation of another Michigan Public Act) to permit such
limited inclusion of such Eligible Business and (y) the MSF Board has
also approved such amended, restated or repealed (or amended,
restated, or repealed by operation of another Michigan Public Act) to
permit such limited inclusion of such Eligible Business as effective under
the Restart Program.
Q) Eligible Expenses" mean expenses of an Eligible Business that may not be used at any
time for any of the purposes described in Section 3.6, and must meet all of the following:
(A) are for necessary expenditures incurred due to the public health
emergency with respect to COVID-19 (such as resulting from employment or
business interruptions due to COVID-19);
(B) must be incurred during the period that begins March 1, 2020 through
December 30, 2020;
(C) for its working capital to support payroll expenses, rent, mortgage
payments, utility expenses, or costs related to reopening the Eligible Business.
For the avoidance of doubt, under the guidance provided by the United States Department of
Treasury, the following expenses are not deemed to be Eligible Expenses, including without limitation,
damages covered by insurance, expenses that have been or will be reimbursed under any other federal
program, reimbursement to donors for donated items or services, workforce bonuses other than hazard
pay or overtime, severance pay or legal settlements.
(k) "Event of Default' means any one or more of those events described in Section 5.1.
(1) "Exhibit' means each of the documents or instruments attached to this Agreement.
(m) "Geographic Coverage Area" means Oakland County, Michigan.
(n) "Grant' has the meaning set forth in Recital C.
(o) "Grantee' means the company as identified in the preamble.
(p) "Grant Manager" means that individual person designated by the MSF Fund Manager
from time to time to provide administrative services for the MSF under this Agreement.
(q) "Indemnified Persons" has the meaning set forth in Section B.6 of Exhibit B.
(r) "Key Personnel' means the Grantee or its Affiliates, subsidiaries, officers, directors,
managerial employees, and any person who, directly or indirectly, holds a pecuniary interest in the
Grantee of 20% or more.
(s) "MEDC" has the meaning set forth in Recital D
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(t) "Minority -Owned" means as applied to an otherwise Eligible Business, that the Eligible
Business is at least fifty-one percent (51 %) directly and unconditionally owned and controlled by one or
more, or any combination of, Black or African Americans; Hispanic Americans; Native Americans
(Alaska natives, native Hawaiians, or enrolled members of a federally or State recognized Indian tribe);
Asian Americans; Arab or Middle Eastern Americans.
(u) "MSF' has the meaning set forth in the preamble.
(v) "MSF Fund Manager' means the person designated by the Board of Directors of the
MSF from time to time to serve as the manager for the MSF programs.
(w) 'Party" or "Parties" has the meaning set forth in the preamble.
(x) 'Progress Report' means the report that consists of the quantitative or numerical data
required by the Act, as more particularly described in Section 2.4(i), and otherwise in form and
substance required from time to time by the Grant Manager.
(y) "Prior MSBRP Grant' has the meaning set forth in the definition of Eligible Business.
(z) "Restart Program" has the meaning set forth in Recital C.
(aa) "State' means the State of Michigan.
(bb) "Sub-Grant(s)" has the meaning set forth in Section 2.4(a).
(cc) "Term of the Grant' or "Term" means from the Effective Date and, unless earlier
terminated as provided by this Agreement, through January 31, 2021.
(dd) "Veteran -Owned" means as applied to an otherwise Eligible Business, that the Eligible
Business is at least fifty-one percent (51%) directly and unconditionally owned and controlled by one or
veterans of any military branch of the United States.
(ee) "Women -Owned" means as applied to an otherwise Eligible Business, that the Eligible
Business is at least fifty-one percent (51 %) directly and unconditionally owned and controlled by one or
more women.
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EXHIBIT B
STATE REQUIRED TERMS
Section B.1 Intentionally Omitted.
Section B.2 Confidentiality. In connection with the transactions contemplated by this Agreement,
the MSF, the MEDC or their representatives may obtain, or have access to all information or data
concerning the business, operations, assets or liabilities of the Grantee. Under MCL 125.2005(9), the
MSF Board has authority, upon the Grantee's request, to acknowledge financial or proprietary Grantee
information as confidential. If the MSF acknowledges Grantee information as confidential (the
"Confidential Information"), the MEDC and the MSF agree that they and their representatives will use
the Confidential Information solely for the purpose of administering this Agreement, and that the
Confidential Information will be kept strictly confidential and that neither the MEDC, the MSF, nor any
of their representatives will disclose any of the Confidential Information in any manner whatsoever.
However, the MSF or the MEDC may disclose Confidential Information: (i) to such of its representatives
who need such information or data for the sole purpose of administering the Restart Program and the
transactions contemplated by this Agreement; (ii) to the extent required by applicable law (including,
without limitation, the Michigan Freedom of Information Act); (iii) if, before the Effective Date, such
information or data was generally publicly available; (iv) if after the Effective Date, such information or
data becomes publicly available without fault of or action on the part of the MSF, the MEDC or its
representatives; and (v) in all other cases, to the extent that the Grantee gives its prior written consent
to disclosure. This Section shall survive indefinitely.
Section B.3 Access to Records and Inspection Riahts During the Term of the Grant, there will
be frequent contact between the Grant Manager, or other MEDC, MSF, State representatives, and the
Grantee. To enable the Auditor General, the Department of Technology, Management and Budget, the
MSF, any representative of the United States Treasury or Office or Government Accountability Office,
or the MEDC (collectively, "Permitted Representatives") to monitor and ensure compliance with the
terms of this Agreement, the Grantee shall permit the Permitted Representatives to visit the Grantee,
and any other location where books and records of the Grantee are normally kept, to inspect the books
and records, including financial records and all other information and data relevant to the terms of this
Agreement, including the expenditure of the Grant funds; provided, however, that such audit right shall
survive the end of the Term of the Grant by seven (7) years. In connection with any such audit, the
Grantee shall cooperate with Permitted Representatives. At such visits, the Grantee shall permit the
Permitted Representatives to make copies or extracts from information and to discuss the affairs,
finances and accounts of the Grantee related to this Agreement with its officers, employees or agents.
Notwithstanding anything to the contrary, except for a copy of the single audit as required in this
Agreement which shall be produced and provided to the MSF, and unless otherwise required by any
representative of the United States Treasury or Office or Government Accountability Office, any
information and data that the Grantee reasonably determines is Confidential Information shall be
reviewed by the Permitted Representatives at the offices of the Grantee and the Permitted
Representatives shall have the right to remove, photocopy, photograph or otherwise record in any way
any part of such books and records with the prior written consent of the Grantee, which consent shall
not be unreasonably withheld.
Section B.4 Termination of Funding. In the event that the federal legislature, federal government,
State legislature or the State government fails to provide or terminates the funding necessary for the
MSF to fund the Grant, the MSF may terminate this Agreement by providing notice to the Grantee not
less than thirty (30) calendar days before the date of cancellation provided, however, that in the event
the action of the federal legislature, federal government, State legislature or State government results
in an immediate absence or termination of funding, this Agreement may be terminated effective
immediately upon delivery of written notice to the Grantee. In the event of termination of funding, the
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MSF has no further obligation to make any disbursements of the Grant beyond the date of termination
of this Agreement.
Section 13.6 Non -Discrimination and Unfair Labor Practices. In connection with this Agreement,
the Grantee agrees not to discriminate against any employee or applicant for employment, with respect
to their hire, tenure, terms, conditions or privileges of employment, or any matter directly or indirectly
related to employment, because of race, color, religion, national origin, ancestry, age, sex (including
sexual orientation and gender identity or expression as defined in Executive Directive 2019-09), height,
weight, marital status, partisan considerations, physical or mental disability, or genetic information (as
defined in Executive Directive 2019-09) that is unrelated to the individual's ability to perform the duties
of the particular job or position. The Grantee further agrees that every subcontract or sub -recipient
agreement entered into for performance of this Agreement will contain a provision requiring
nondiscrimination in employment, as specified in this Agreement, binding upon each subcontractor.
This covenant is required, as applicable under the Elliot Larsen Civil Rights Act, 1976 PA 453, MCL
37.2101, et seq., and the Persons with Disabilities Civil Rights Act, 1976 PA 220, MCL 37.1101, et seq.,
and is consistent with Executive Directive 2019-09, and any breach thereof may be regarded as a
material breach of this Agreement.
Under 1980 PA 278, MCL 423.321, et seq., the State shall not award a contract or subcontract
to an employer whose name appears in the current register of employers failing to correct an unfair
labor practice compiled under MCL 423.322. The United States Labor Relations Board compiles this
information. The Grantee shall not enter into a contract with a subcontractor, manufacturer, or supplier
whose name appears in this register. Under MCL 423.324, the State may void any contract if,
subsequent to the award of the contract, the name of the Grantee as an employer, or the name of a
subcontractor, manufacturer, or supplier of the Grantee appears in the register.
Section 13.6 Indemnification and Hold Harmless. Except for their respective obligations to process
or disburse the Grant funds as required in this Agreement, the MSF, the State, the MEDC, its Executive
Committee and their respective directors, participants, officers, agents and employees (collectively, the
"Indemnified Persons") shall not be liable to the Grantee for any reason. The Grantee shall indemnify
and hold the State, the MSF, and the MEDC and other Indemnified Person harmless against all claims
asserted by or on behalf of any individual person, firm or entity (other than an Indemnified Person),
arising or resulting from, or in any way connected with this Agreement or any act or failure to act by the
Grantee under the Agreement, including all liabilities, costs and expenses, including reasonable counsel
fees, incurred in any action or proceeding brought by reason of any such claim. The Grantee shall also
indemnify the MSF, the MEDC and other Indemnified Person from and against all costs and expenses,
including reasonable counsel fees, lawfully incurred in enforcing any obligation of the Grantee under
this Agreement.
The Grantee shall have no obligation to indemnify an Indemnified Person under this Section if
a court with competent jurisdiction finds that the liability in question was solely caused by the willful
misconduct or gross negligence of the MSF, the MEDC or other Indemnified Person, unless the court
finds that despite the adjudication of liability, the MSF, the MEDC or other Indemnified Person is fairly
and reasonably entitled to indemnity for the expenses the court considers proper. The MSF, the MEDC
and the Grantee agree to act cooperatively in the defense of any action brought against the MSF, the
MEDC or another Indemnified Person to the greatest extent possible.
Performance of the Grantee's obligations contemplated under this Agreement is within the sole
control of the Grantee and its employees, agents and contractors, and an Indemnified Person shall
have no liability in tort or otherwise for any loss or damage caused by or related to the actions or failures
to act, products and processes of the Grantee, its employees, agents or contractors. This Section shall
survive indefinitely.
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Section B.7 Jurisdiction. The Parties shall make a good faith effort to resolve any
controversies that arise regarding this Agreement. If a controversy cannot be resolved, the Parties
agree that any legal actions concerning this Agreement shall be brought in the Michigan Court of Claims
or, as appropriate, Ingham County Circuit Court in Ingham County, Michigan. The Grantee
acknowledges by signing this Agreement that it is subject to the jurisdiction of this court and agrees to
service by first class or express delivery wherever the Grantee resides, in or outside of the United
States. This Section shall survive indefinitely.
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Resolution #20304
August 6, 2020
Moved by Luebs seconded by Long the resolutions on the amended Consent Agenda be adopted (with
accompanying reports being accepted).
AYES: Gingell, Hoffman, Jackson, Kochenderfer, Kowall, Kuhn, Long, Luebs, Markham,
McGillivray, Middleton, Miller, Nelson, Powell, Quarles, Spisz, Taub, Weipert, Woodward, Zack,
Gershenson. (21)
NAYS: None. (0)
A sufficient majority having voted in favor, the resolutions on the amended Consent Agenda were adopted
(with accompanying reports being accepted).
1 HEREBY APPROVE THIS RESOLUTION
CHIEF DEPUTY COUNTY EXECUTIVE
ACTING PURSUANT TO MCL 45,559A (7)
STATE OF MICHIGAN)
COUNTY OF OAKLAND)
I, Lisa Brown, Clerk of the County of Oakland, do hereby certify that the foregoing resolution is a true and
accurate copy of a resolution adopted by the Oakland County Board of Commissioners on August 6, 2020,
with the original record thereof now remaining in my office.
In Testimony Whereof, I have hereunto set my hand and affixed the seal of the Circuit Court at Pontiac,
Michigan this 6t' day of August, 2020.
Lisa Brown, Oakland County