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HomeMy WebLinkAboutResolutions - 2021.02.04 - 34136MISCELLANEOUS RESOLUTION #21035 February 4, 2021 BY: Commissioner Gwen Markham, Chairperson, Finance Committee IN RE: ECONOMIC DEVELOPMENT — MICHIGAN ECONOMIC DEVELOPMENT CORPORATION — MICHIGAN SMALL BUSINESS SURVIVAL GRANT PROGRAM — GRANT ACCEPTANCE To the Oakland County Board of Commissioners Chairperson, Ladies and Gentlemen: WHEREAS the COVID-19 pandemic and actions to protect public health have caused economic challenges for local small businesses; and WHEREAS Oakland County's Economic Development department has been awarded a grant of $6,075,000 through the Michigan Small Business Survival Grant Program to support small businesses in the community from the Michigan Economic Development Corporation (MEDC); and WHEREAS the 2021 grant program funding period is from January 15, 2021, to April 30, 2021; and WHEREAS the Michigan Small Business Survival Grant Program provides funding to eligible small businesses disproportionately impacted by COVID-19 and the Gatherings and Mask Order (Order) issued by the Michigan Department of Health and Human Services; and WHEREAS in order to be eligible for funding under the Program, small businesses must be a for -profit or non-profit company and meet the following criteria: • Have 100 or fewer employees located in Oakland County, • Is in an industry that demonstrates it is affected by the COVID-19 emergency and the Order, • Needs working capital to support payroll expenses, rent, mortgage payments, utility expenses, or other similar expenses, • Demonstrates an income loss as a result of the Order as determined by the requirements of the Michigan Strategic Fund (MSF) and Oakland County Economic Development department, • Is not a live music and entertainment venue that is eligible for funds under Section 401 of Public Act 257 of 2020: Michigan Stages Survival Grant Program; and WHEREAS eligible businesses disproportionately impacted by COVID-19 and the Gatherings and Mask Order will largely fall into one of the categories below. However, businesses in other industries may be considered if they can demonstrate they meet the eligibility, at the discretion of Oakland County, particularly if they were impacted by the Gatherings and Mask Order: • Food service establishments (such as restaurants and bars, coffee, bakeries, catering, breweries, distilleries, wineries, tea shops, banquet facilities and other food and beverage service providers), • Retail (such as boutiques, bookstores, hardware, anything being sold that is not food), • Exercise facilities (such as gyms, studios, pool facilities, ice skating rinks, organized sports), • Entertainment venues or live event venues that are not eligible for the Michigan Stages Survival Grant as defined under Section 401 of Public Act 257 of 2020, • Recreational Facilities and places of public amusement (such as bowling alleys, arcades, bingo halls), • Nonprofits (such as library, museum, churches, religious centers, advocacy organizations), • Personal care services (such as hair, nail, tanning, massage, spa), • Schools, • Childcare and camps, • Transportation (such as limo services), • Other businesses specified in the application; and WHEREAS grant funds may be used by the business for eligible expenses including working capital to support payroll expenses, rent, mortgage payments, utility expenses, and other expenses related to reopening a business incurred between November 18, 2020 and April 30, 2021; and WHEREAS awarded grant amounts will be at the discretion of Oakland County. Grants may be awarded up to $20,000 for an eligible business that has been temporarily closed and up to $15,000 for an eligible business that has been partially closed, or otherwise is open; and WHEREAS the Michigan Economic Development Corporation administered the application process for the program. Eligible businesses were provided an opportunity to apply through the MEDC from January 19, 2021, to January 22, 2021; and WHEREAS any funds must be disbursed by the County by February 28, 2021. After that date, unexpended funds will be returned to the Michigan Strategic Fund for reallocation to local economic development organizations for disbursement to eligible businesses by April 30, 2021; and WHEREAS under the terms of the Grant Acceptance Agreement, Oakland County is responsible to develop and execute a systematic and strategic process to accept, review and evaluate the applications from eligible businesses and the selection of eligible businesses that shall receive a grant award; and WHEREAS the Oakland County Department of Economic Development shall submit recommended procedures for the review, evaluation and award of grant funds for approval by the Pandemic Response Ad Hoc Committee; and WHEREAS the Grant Acceptance Agreement has been reviewed by the Grant Review Process in accordance with the Oakland County Grants Policy and Procedures approved by the Board of Commissioners on January 21, 2021; and WHEREAS Oakland County Corporation Counsel has reviewed and approved the attached Michigan Small Business Survival Program Grant Acceptance Agreement; and WHEREAS no grant application was required for the acceptance of program funding. The Chairman of the Board has executed the Grant Acceptance Agreement in accordance with deadlines established by the Michigan Strategic Fund; and WHEREAS Oakland County will issue sub -grant agreements awarding grant funds to eligible businesses in accordance with the requirements of the Grant Acceptance Agreement and procedures approved by the Pandemic Response Ad Hoc Committee. NOW THEREFORE BE IT RESOLVED that the Oakland County Board of Commissioners hereby approves the grant acceptance of the Michigan Small Business Survival Grant Program in the amount of $6,075,000 from the Michigan Economic Development Corporation and confirms the execution of the Grant Acceptance Agreement by the Chairman of the Board. BE IT FURTHER RESOLVED that the Pandemic Response Ad Hoc Committee is authorized to approve the process and procedures for the review, evaluation and award of grant funds. BE IT FURTHER RESOLVED that this grant agreement 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 2021 budget is amended as follows: MSF-SMALL BUSINESS SURVIVAL (#29245) FY 2021 GR0000001047 Activity: GLB Analysis: GLB Budget Ref: 2021 Revenue 1090101-171000-615571 State Operating Grant $ 6,075,000 Total Revenue $ 6,075,000 Exoenditures 1090101-171000-731598 Regranting Program $ 6,075,000 Total Expenditures $ 6,075,000 Chairperson, on behalf of the Finance Committee, I move adoption of the foregoing resolution 4)e� ( M1kj'C_ Commissioner'Gwen Markham, District #9 Chairperson, Finance Committee FINANCE COMMITTEE VOTE: Motion carried unanimously on a roll call vote. GRANT REVIEW SIGN -OFF — Economic Development & Community Affairs GRANT NAME: MICHIGAN SMALL BUSINESS SURVIVAL PROGRAM GRANT FUNDING AGENCY: State of Michigan -Michigan Economic Development Corporation (MEDC) DEPARTMENT CONTACT: Dan Hunter / 858-0764 STATUS: Grant Acceptance (Greater than $10,000) DATE: 02/02/21 Please be advised the captioned grant materials have completed internal grant review. Below are the returned comments The Board of Commissioners' liaison committee resolution and grant acceptance package (which should include this signoff and the grant agreement/contract with related documentation) may be requested to be placed on the agenda(s) of the appropriate Board of Commissioners' committee(s) for grant acceptance by Board resolution. DEPARTMENT REVIEW Management and Budget: Approved by M & B — 2/l /2021. Draft resolution will require new fund and grant to be set up to complete the budget amendment for this. Also, the following language contained in the resolution needs to be vetted to see if still applies (is there still a recovery committee — or is this from the prior recovery grant resolution that does not apply here or needs to be updated?). WHEREAS Oakland County will issue sub -grant agreements with an award amount of up to $15,000 to eligible small businesses whose application will be approved by the Recovery Oversight Gant Committee; and In addition, it needs to be resolved as to the processing of payments and if a fulfillment company is going to be used how the administrative costs factor in to the grant. —Lynn Sonkiss (02/02/21) Human Resources: HR Approved —No FIR Implications —Lori Taylor (02/02/21) Risk Management: Approved by Risk Management. — Robert Erlenbeck (02/02/21) Corporation Counsel: "Approved" by Corporation Counsel with a recommended modification: Section B.6 (Indemnification and Hold Harmless) of Exhibit B (State Required Terms) to the State grant agreement requires the County to indemnify and hold harmless the listed state agencies and employees against all claims/lawsuits related to the grant agreement. It is the County's position that it cannot contractually agree to indemnify third parties, including the state of Michigan. I recommended the removal of that indemnification requirement/section." —Robert Rottach (02/02/21) Execution Copy CASE - 321006 AGREEMENT THIS GRANT AGREEMENT (this "Agreement"), effective as of January 15, 2021 (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 organization, whose address and principal office is 2100 Pontiac Lake Road, Waterford, Michigan 48328 (the "Grantee"), As used in this Agreement, the MSF and the Grantee are, individually, a "Party" and, collectively, the "Parties". RECITALS A. The Michigan legislature passed, and the Governor signed into law, the Michigan Strategic Fund Act, MCL 125.2001 et. seq. ("Act"), to enable the MSF to provide incentives in the form of grants, loans and other economic assistance for the development and improvement of Michigan's economy; B. The Michigan legislature passed, and the Governor signed into law, supplemental appropriations, being Public Act 257 of 2020, which in Section 402 thereunder, appropriates $55,000,000 to create and operate a small business survival grant program to provide small business survival grants to eligible businesses in this State ("Section 402 Appropriation'); C. The MSF Board approved the use of the funds appropriated under the Section 402 Appropriation the creation and operation of the Michigan Small Business Survival Program as set forth in Public Act 257 of 2020, to provide grants to economic development organizations to permit sub- grants to eligible small businesses that have been impacted as a result of the gatherings and face mask order issued by the State Department of Health and Human Services on December 7, 2020 taking effect on December 9, 2020 at 12:01 a.m. through December 20, 2020 at 11:59 p.m. ("December Order"), and the State Department of Health and Human Services order taking effect on November 18, 2020 entitled gatherings and face mask order that was rescinded and replaced by the December Order (the November 18, 2020 order and the December Order, collectively, "Order") ("MSBSGP"); D. On January 14, 2021, the MSF Board also approved an MSBSGP grant award to the Grantee in the amount of up to Six Million Seventy Five Thousand Dollars ($6,075,000) to be disbursed under the terms of this Agreement (the "Grant"). E. Under the control and direction of the MSF Board, the MEDC, provides administrative services for the MSF. In consideration of the recitals and promises in this Agreement, the Parties agree: ARTICLE I DEFINITIONS Section 1.1 pefined Termj. 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. DocuSign Envelope ID: BB7D8AB9-37E9-4FFB-B463-OE9629F55927 DocuSign Envelope ID: BB7D8AB9-37E9-4FFB-B463-OE9629F55927 Execution Copy 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. Section 2.1 Grant Commitment. Subject to the terms and conditions of this Agreement, and in reliance upon the representations and covenants 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 schamnersCa)michioan.oro. Section 2.3 Grant Disbursement. Subject to the terms and conditions of this Agreement, including the absence of a Default or Event of Default, after this Agreement is fully signed by the Parties and the Grantee has completed the registration to receive Grant funds by EFT at the State Integrated Governmental Management Applications (SIGMA) Vendor Self Service (VSS) website, the payment of the full amount of the Grant shall be made to the Grantee in one disbursement, as soon as institutionally possible for the MSF. 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 Eligible Businesses to submit a fully complete application for a grant under the MSBSGP. The Grantee shall develop and execute a systematic and strategic process to accept, review and evaluate the Eligible Business applications, and select Eligible Businesses to receive an award under the MSBSGP. Grantee shall enter into written grant agreements or other written certifications, with the Grantee's selected Eligible Businesses to effectuate redistribution of all Grant funds received by Grantee (less the Administrative Amount, as applicable) to Eligible Businesses in the Geographic Coverage Area to provide working capital for the Eligible Expenses of each such Eligible Business (the aforementioned, individually, a "Sub -Grant" and collectively, the "Sub - Grants"). (b) Announcement of Selected Eligible Businesses. Prior to any public announcement by the Grantee of its selection of Eligible Businesses, the Grantee shall collaborate with Keli Edmonds, whose email address is kedmonds(d),michiaan.ora to coordinate a public announcement of the selected Eligible Businesses; to that end the Grantee, shall endeavor to provide for each respective selected Eligible Business: the name of the Eligible Business, the county within the Geographic Coverage Area where the Eligible Business is located, the prospective Sub -Grant amount, and the prospective number of jobs reported by the Eligible Business that would be retained or rehired with the Sub -Grant funds. (c) Administrative Amount. Grantee may use 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. DocuSign Envelope IDBB7D8AB9-37E9-4FFB-B463-OE9629F55927 Execution Copy (d) Sub -Grant Criteria. Each Sub -Grant must be executed by the Grantee with and to the benefit of each selected Eligible Business, and include at least the following: 1) Identification of the Eligible Business, and the applicable county within the Geographic Coverage Area where the Eligible Business is physically located; 2) The amount of each Sub -grant award must not exceed either: (i) $20,000 for an Eligible Business that has been closed as a result of the Order (ii) or $15,000 for an Eligible Business that has been partially closed as a result of the Order, or otherwise is an Eligible Business that has been open. The final amount of the Sub -Grant (within the preceding limitations) shall be determined by the Grantee based upon the evaluation of the Eligible Business, and its application for MSBSGP funds; 3) Provisions requiring, including an affirmation by the recipient Eligible Business, that the Sub -Grant funds may only be used by the recipient Eligible Business for Eligible Expenses; 4) Provisions requiring the recipient Eligible Business i. Provide the reporting information to the Grantee in a sufficient manner for the Grantee to report the required information to Grant Manager at the times and as set forth in Section 2.4(0; ii. Provide such other and/or additional information arising out of or related to the Sub -Grant, including the Grantee's use of Sub -Grant funds, to, and upon the request of, any one or combination of, the Grantee, the MSF, any State representative; iii. 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 B.3 of Exhibit B. (e) Authorized Sub -Grants and Distributions. Grantee shall administer the Sub -Grants to ensure efficient and responsible distribution of Grant funding to its selected Eligible Businesses and shall endeavor to distribute the Sub -Grant funds as soon as institutionally possible for the Grantee Provided however, as required by the Section 402 Appropriation and the MSF Board: 1) all Sub -Grant funds shall be under a written Sub -Grant agreement or other written certification with each such Eligible Business, no later than the January 31, 2021, and provided further, in the event all Sub -Grant funds are not under agreement or written certification with each such Eligible Business by January 31, 2021, the MSF Fund Manager may effectuate reallocation of the entire amount of the Grant to permit the Grantee to enter into the Sub -Grants. The Grant Manager shall provide written notification as soon as institutionally possible after January 31, 2021 of the action of the MSF Fund Manager. In the event the MSF Fund Manager does not so reallocate, the Grantee shall return the Grant (less a portion of the Administrative Amount to be retained by the Grantee as mutually agreed upon by the MSF Fund Manager and the Grantee) to the MSF upon the written notification of the Grant Manager; and DocuSign Envelope ID: BB7D8AB9-37E9-4FFB-B463-6E9629F55927 Execution Copy 2) all Sub -Grant funds then in the possession or control of the Grantee shall be distributed by the Grantee each selected Eligible Business no later than February 28, 2021. (f) Reporting. In order for the MSF to provide the required reporting under the MSBSGP to the Michigan legislature, the Grantee shall provide to the Grant Manager an initial report on February 1, 2021, and a final report no later than March 1, 2021, on a spreadsheet with a detailed list of information relative to the selected Eligible Businesses that received Sub -Grants, including: 1) the names and addresses of the Eligible Businesses; 2) number of employees as of November 17, 2020, 3) the number of employees at the time of the MSBSGP application; 4) the projected number of employees to be retained or rehired as result of the Sub - Grant funds; 5) the amount of other COVID-19 relief funding received from local and federal sources other than the State since March 1, 2020; 6) the type of industry of the Eligible Business (i.e., the type of the business and its operations); 7) a brief description of the Eligible Expenses for which the amount of the Sub -Grant has been or will be used; 8) the corresponding amount of each respective Sub -Grant; 9) the corresponding amount of Sub -Grant funds then actually distributed by the Grantee under each respective Sub -Grant. The Grantee and the Grant Manager shall collaborate on the form and other content and pertinent information thereto for such spreadsheet deemed satisfactory to the Grant Manager. 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 Authofy. 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, DocuSign Envelope ID BB7D6AB9-37E9-4FFB-B463-9E9629F55927 Execution Copy 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, 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 and 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 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 (a)), 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 DocuSign Envelope ID: BB7D8AB9-37E9-4FFB-B463-9E9629F55927 Execution Copy 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 Rea !red Terms. The Grantee shall comply with its representations, warranties, and obligations as required and set forth in Exhibit B. Section 3.10 pisrharpe of Ohlinations. 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). Section 3.11 Chanae of Legal 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 Unused Funds. (a) Any Grant funds in the possession or control of the Grantee that are not actually distributed by the Grantee to each selected Eligible Business as permitted under this Agreement by February 28, 2021, shall be returned by the Grantee to the MSF immediately after February 28, 2021; (b) Except as otherwise provided by Section 2.4(e)(1), any of the Administrative Amount in the possession or control of the Grantee on February 28, 2021 that has not been used by the Grantee, or otherwise reserved by the Grantee to be used, as permitted hereunder for its administration of the MSBSGP, shall be returned by the Grantee to the MSF immediately after February 28, 2021. 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 DocuSign Envelope ID: BB7D8AB9-37E9-4FFB-B463-OE9629F55927 Execution Copy 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 AVID TERMINATION- AND REPAYMENT PROVISIONS Section 5.1 Default. Susnensinn and Termination. Notwithstanding anything to the contrary, the MSF's obligation to disburse any portion of the Grant shall automatically be suspended in upon the occurrence, and during the continuance, of a Default or any one or more of the following events or conditions (each an "Event of Default"), unless a written waiver is provided by the MSF, and this Agreement may be terminated, at the option of the MSF: (a) any representation made by the Grantee in support of this Agreement is materially incorrect at the time that such representation was made, including without limitation, any 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 11 and Article 111, or failure to submit required reports hereunder when due; and such failure continues for a period of five (5) 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 6.2 Repayment. (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, less the amount of the Sub -Grants then made or approved by the Grantee, in each case, in accordance with this Agreement. (b) &rovery 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 6.3 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. DocuSign Envelope ID: BB7D8AB9-37E9-4FFB-B463-OE9629F55927 Execution Copy 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 Agreement. 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, understandings, and communications, whether written or oral, with respect to the subject matter of this Agreement. Section 6.3 Counteroarts: Facsinr le/Pdf Sianatures. 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 Severability. 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 6.6 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 Governina 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 Assigns. 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. DocuSign Envelope ID: BB7D6AB9-37E9-4FFB-B463-OE9629F55927 Execution Copy 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 MSBSGP through one or more of the placement of a sign, plaque, media coverage or other public presentation acceptable to the Parties. (Signature page follows) Execution Copy 10 The Parties have executed this Agreement effective on the Effective Date. OAKLAND COUNTY ECONOMIC DEVELOPMENT AND COMMUNITY AFFAIRS By: David T. Woodward Its: Chairman 09:48 EST) MICHIGAN STRATEGIC FUND By: Valerie Hoag Its: Fund Manager (Signature page to the Michigan Small Business Survival Grant Program Grant Agreement) Da1$d Tv W**d2a-d EQ.$") d cncpRupRcx nnrvy,iA 2**d2a-dde*a&" 1vc*[ DocuSign Envelope IDBB7D8AB9-37E9-4FFB-B463-6E9629F55927 Execution Copy A-1 EXHIBIT A DEFINED TERMS "Act" has the meaning set forth in Recital A. G. "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. H. "Affiliate' means, as applied to any person, any other person directly or indirectly controlling, controlled by, or under common control with, that person. Forthe 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 (it) to direct or cause the direction of the management and policies of that person, whether through equity ownership, or by contract or otherwise. "Agreement" means this Agreement, including the Exhibits to this Agreement. Auditor General' means the auditor general of the State of Michigan. K. "Confidential Information" has the meaning set forth in Section B.2 of Exhibit B. (d) "December Order" has the meaning set forth in Recital C. (e) "Default' means an event which, with the giving of notice or passage of time or both, would constitute an Event of Default. (f) "Effective Date" has the meaning set forth in the preamble. (g) "Eligible Business" means a for -profit or non-profit company that demonstrates to the Grantee that it meets all the following requirements: is physically located in the Geographic Coverage Area; • had 1-100 employees (full-time, part-time or owner -employees) on a worldwide basis as of November 17, 2020; is in an industry affected by the Order; has incurred income loss as a result of the Order; needs working capital for Eligible Expenses; is not a live music and entertainment venue that is eligible for funds under the Michigan Stages Survival Grant Program approved by the MSF on January 14, 2021 in accordance with Public Act 257 of 2020, Section 401. DocuSign Envelope ID: BB7D8AB9-37E9-4FFB-B463-OE9629F55927 DocuSign Envelope IDBB7D8AB9-37E9-4FFB-B463-OE9629F55927 Execution Copy (a) "Eligible Expenses" mean expenses of a selected 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: 1) must be incurred and paid during the period beginning November 18, 2020, 2020 and through April 30, 2021; 2) 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, the following expenses are not permitted to be deemed Eligible Expenses, including without limitation, reimbursement to donors for donated items or services, workforce bonuses other than hazard pay or overtime, severance pay or legal settlements. (f) "Event of Default' means any one or more of those events described in Section 5.1. (g) "Exhibit' means each of the documents or instruments attached to this Agreement. (h) "Geographic Coverage Area" means the following counties in the State: Oakland. (i) "Grant' has the meaning set forth in Recital C. (j) "Grantee" means the company as identified in the preamble. (k) "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. (1) 'Indemnified Persons" has the meaning set forth in Section B.6 of Exhibit B. (f) "Key Personnel' means the Grantee and 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. (g) "MEDC" has the meaning set forth in Recital D (h) "MSBSGP" has the meaning set forth in Recital C. (i) "MSF' has the meaning set forth in the preamble. (j) "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. (k) "Order' has the meaning set forth in Recital C. (1) 'Party' or "Parties" has the meaning set forth in the preamble. (m) 'Permitted Representative(s)" has the meaning set forth in Section B.3 of Exhibit B. (aa) "Section 402 Appropriation" has the meaning set forth in Recital B. (bb)"State" means the State of Michigan. (cc) "Sub-Grant(s)" has the meaning set forth in Section 2.4(a). A-2 DocuSign Envelope ID: BB7D8AB9-37E9-4FFB-B463-OE9629F55927 Execution Copy (dd) "Term of the Grant" or "Term" means from the Effective Date and, unless earlier terminated as provided by this Agreement, through April 30, 2021. DocuSign Envelope ID: BB7DBAB9-37E9-4FFB-B463-OE9629F55927 Execution Copy A-3 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 MSBSGP 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 Recnrds and Inspection Rights. 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, the MEDC, or any representative thereof (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, 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 BA Termination of Fundina. In the event that the 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 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 CN DocuSign Envelope ID: BB7D8AB9-37E9-4FFB-B463-OE9629F55927 Execution Copy to the Grantee. In the event of termination of funding, the MSF has no further obligation to make any disbursements of the Grant beyond the date of termination of this Agreement. Section B.5 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 B.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. B-2 Execution Copy 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. 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. W DocuSign Envelope ID: BB7D8AB9-37E9-4FFB-B463-OE9629F55927 Resolution #21035 February 4, 2021 Moved by Markham seconded by Weipert the resolution be adopted. AYES: Charles, Gershenson, Hoffman, Jackson, Joliat, Kochenderfer, Kowall, Kuhn, Long, Luebs, Markham, McGillivray, Miller, Moss, Nelson, Powell, Spisz, Weipert, Woodward, Cavell. (20) NAYS: None. (0) A sufficient majority having voted in favor, the resolution was adopted. HEREBY APPROVE THE FOREGO" I 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 February 4, 2021, 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 4ch day of February 4, 2021. Lisa Brown, Oakland County