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HomeMy WebLinkAboutWEDC/Community Development Investment Grant AgrContract # CDT FY14-22223 COMMUNITY DEVELOPMENT INVESTMENT GRANT AGREEMENT BETWEEN THE WISCONSIN ECONOMIC DEVELOPMENT CORPORATION AND CITY OF OSHKOSH This Agreement is entered into pursuant to Chapter 238 of the Wisconsin Statutes between the Wisconsin Economic Development Corporation ("WEDC") and City of Oshkosh (the `Recipient"). WITNESSETH WHEREAS, the Recipient has submitted an Application to WEDC, requesting funds from WEDC's Community Development Investment grant program ("CDI Funds"); WHEREAS, the Recipient is a City located in Wisconsin. WHEREAS, WEDC has determined that the Recipient is an eligible recipient of CDI Funds; and WHEREAS, in reliance. upon the Recipient's Application, WEDC has approved the Recipient for up to Two Hundred Fifty Thousand and 001100 Dollars ($250,000.00) in CDI Funds. NOW, THEREFORE, for valid consideration, the receipt of which is hereby acknowledged, and in consideration for the promises and covenants in this Agreement, WEDC and the Recipient agree as follows: 1. Definitions. For purposes of this Agreement, the following terms shall have the following meanings: (a) "Agreement" means this agreement, to include all documents required to be delivered contemporaneously with the execution and delivery of this Agreement, and the attached Exhibits, together with any fixture amendments executed in compliance with Paragraph 21 of this Agreement. (b) "Application" means the materials submitted by the Recipient to WEDC relating to this allocation of CDI Funds. (c) "CDI Funds" means the grant monies the Recipient is eligible to receive from WEDC's Community Development Investment grant program in accordance with this Agreement. parties. (d) "Effective Date" means the date on which this Agreement is fully executed by both Page 1 of 12 Contract iY CDf FY14-22.22 3 (e) "Eligible Project Costs" means costs for which CDI Funds may be used, as outlined in Paragraph 3.(g) of this Agreement, which the Recipient incurs between January 1, 2014 and July 31, 2014. (f) "Matching Funds" means non-WEDC funds secured by the Recipient to meet the funding :requirement of the CDI Funds under this Agreement. (g) "Project" means the Recipient's complete renovation of 531 N. Main Street sufficient to de -idle the property for adaptive reuse by Neleven, Inc., in accordance with the Recipient's Application and the terms of this Agreement; (h) "Project Location" means the site or sites at which the Project will take place, specifically 531 N. Main, Oshkosh, Wisconsin. 2. CDI Funds. Subject to the terms and conditions set forth in this Agreement, acid in Wisconsin law, WEDC shall provide to the Recipient a grant of up. to Two Hundred Fifty Thousand and 001100 Dollars ($250,000.00) in CDI Funds. 3. Recipient's Obligations. The Recipient will: (a) Complete the Project as contemplated by the Application and in accordance with the terms of this Agreement. (b) Secure Matching Funds from non-WEDC sources equal to at least Seven Hundred Fifty Thousand and 001100 Dollars ($750,000.00), to achieve a 3:1 match requirement to the CDI Funds under this Agreement. (c) Provide signage, according to WEDC's specifications at the Project Location indicating WEDC financial participation in the Project. (d) Provide acknowledgement, according to WEDC's specifications, of WEDC's participation in the Project in any and all planning and feasibility doctunents related to the Project. (e) Provide reports to WEDC as further described in Paragraph 5 of this Agreement, in such form as required by WEDC, a sample of which is attached to this Agreement as Fxhihit B. (f) The Recipient shall accomplish the following tasks in accordance with its application and related materials: Enter into a Development Agreement with Neleven, Inc. (d,b.a. Dealerfrre). ("the Business") prior to the release of funds to the Recipient. The Development Agreement shall include a requirement for the Business to prepare, keep and maintain records that allow the Recipient to determine whether they are complying with the terms of the agreement. Such records will include at a minimum bills and invoice records related to project expenditures. The Recipient shall have reasonable access to all records relating to this agreement. Page 2 of 12 Contract 4 CIA FYI 4-2222") (g) Use the CDI Funds for Eligible Project Costs as outlined in the following budget and ensure that such Eligible Project Costs are incurred by a qualified and independent third party: USES SOURCES _,Equity.. Pul 3 e Prxvate.. Gzanl u r F Total r T .,ri O ll r Building 'V Renovation $100,200 $250,000 $651,800 ; $1,002,000 — ---. _..__ Acquisition $24,000 $0 $216,000 ; $240,000 Grand Total . $1241266. "$2503006 ' $867,800 $1,242000 ` The amount incurred by the Recipient on each Eligible Project Cost may vary by up to ten percent (10%) of the amount delineated in the table above, provided that the total amount of WEDC. CDI Funds will not exceed the amount awarded tinder this Agreement. 4. Release of Funds. WEDC will release the CDI Funds contemplated by this Agreement to the Recipient on a disbursement basis. The Recipient may request the CD1 Funds in one or more disbursements and will be contingent on the following: (a) The Recipient submitting to WEDC a request for WEDC Payment in such form as required by WEDC, a sample of which is attached to this Agreement as Exhibit A. (b) The Recipient submitting to WEDC a report detailing the dollar amount and purpose of the Eligible Project Costs included in the request for reimbursement as well as the dollar amount and purpose of each expenditure that the Recipient has contributed to the Project since the date of the previous disbursement of CDI Funds. (c) The Recipient submitting to WEDC documentation of the Eligible Project Costs incurred. Such documentation may include, but not be limited to, purchase orders or invoices. (d) The Recipient must request all CDI Funds no later than 9/30/2014. S. Reporting. The Recipient shall provide reports to WEDC subject to the following requirements: . (a) Semi -Annual performance reports in such form as required by WEDC, a sample of which is attached to this Agreement as Exhibit B,' which shall include a financial overview and narrative summary on the progress of the Project to date, (b) A Final Report, -in such form as required by WEDC, as sample of which is attached to this Agreement as Exhibit B, shall include details on the following metrics, specific to the Project: Page 3 of 12 Contract CDl FY14-2222 (i) Job creation (ii) Job retention (iii)Leveraged investment (iv)Project specific gains (v) Increase in tax base (c) Schedule of Reporting: PERIOD COVERED DOCUMENTATION DUE DATE 1/01/2014-12/31/2014 Schedule of Expenditures 5/1/2015 1/01/2014 — 6/30/2014 Semi -Annual Performance Report 9/1/2014 7/1/2014 —12/31/2014 Final Report 3/1/2015 6. Schedule of Expenditures. Consistent with Wis. Stat. § 238.03(3)(a), the Recipient must submit to WEDC, within 120 days after the end of the Recipient's fiscal year in which any grant or .loan funds were expended, a schedule of expenditures of the grant or loan funds, including expenditures of any Snatching cash or in—kind match, signed by the director or principal officer of the recipient to attest to the accuracy of the schedule of expenditures. The Recipient shall engage an independent certified public accountant to perform procedures, approved by WEDC and consistent with applicable professional standards of the American Institute of Certified Public Accountants, to determine whether the grant or loan funds and any matching cash or in—kind match were expended in accordance with the grant or loan contract. The Recipient must make available for inspection the documents supporting the schedule of expenditures. 7. Event of Default. The occurrence of any one or more of the following events shall constitute an Event of Default for the purposes of this Agreement: (a) The Recipient ceases operation or relocates operations outside of Wisconsin within five (5) years of the Effective Date of this Agreement. (b) The Recipient supplies false or misleading information to WEDC in connection with this Agreement. (c) The Recipient fails to comply with or perform, in any material respect, any of its obligations under this Agreement. S. Remedies in Event of Default. (a) Upon the occurrence of an Event of Default, WEDC shall send a written notice of default.to the Recipient, setting forth with reasonable specificity the nature of the default. If the Recipient fails to cure any such Event of Default to the reasonable satisfaction of WEDC within Page 4 of 12 C.:ontract 4. CDT FYI4-22223 thirty (3 0) calendar days, WEDC may, without further written notice to the Recipient, declare the Recipient in default. In the Event of Default, WEDC may terminate the Agreement and recover from the Recipient: (i) One hundred percent (100%) of the total amount of CDI Funds disbursed under this Agreement; (ii) A financial penalty of up to one percent (I%) of the CDI Funds; and (iii)All court costs and reasonable attorney's fees incurred by WEDC in terminating the Agreement and recovering the amounts owed by the Recipient under this provision. (b) These amounts shall be paid to WEDC within thirty (30) calendar days of demand by WEDC hereunder. If the Recipient fails to pay these amounts to WEDC, the Recipient will be liable for the full unpaid balance plus interest at the annual rate of twelve percent (120/0) from the date of the notice of Event of Default. (c) The thirty (30) day cure period set forth in (a) .above may be extended by WEDC, provided that the Recipient begins to cure such matter and thereafter diligently pursues a cure. 9. Recipient's Warranties and Representations. In addition to the other provisions of this Agreement, the Recipient hereby warrants and represents to the best of its knowledge that as of the date of this Agreement: (a) The Recipient is in compliance with all laws, regulations, ordinances and orders of public authorities applicable to it, the violation of which would have a material, adverse effect on the Recipient's ability to perform its obligations under this Agreement. (b) The undersigned officer of the Recipient is fully authorized to execute and deliver this Agreement on behalf of the Recipient. (c) In making these warranties and representations, the Recipient has not relied on any information furnished by WEDC. (d) The Recipient's warranties and representations herein are true and accurate as of the Effective Date of this Agreement, and shall survive the execution thereof. 10. Wisconsin Public Records Law and Confidential Documents. (a) The Recipient understands that this Agreement and other materials submitted to WED C may constitute public records subject to disclosure under Wisconsin's Public Records Law, §§ 19.31-.39. (b) Except as otherwise required or provided by court order, legal process or applicable law including §§ 19.31-39, WEDC shall not, without the Recipient's consent, reveal or disclose Page 5 of 12 Contracilt CDT FYI 4-22223 to any non-government person or entity financial or other information or materials provided by the Recipient if the Recipient has indicated that such information or materials are sensitive and should be kept confidential. The Recipient must indicate that such materials are to be protected under this paragraph by marking the documents "confidential." (c) If the Recipient contends that any document provided to WEDC is exempt from disclosure under Wisconsin's Public Records Law, for reasons including that the document qualifies as a trade secret under § 134.90, the Recipient shall: (i) Clearly mark the document as not subject to disclosure under the Public Records Law. If the Recipient contends the document is a trade secret under § 134.90, the Recipient shall specifically mark the documents as "Confidential Trade Secrets." (ii) Provide WEDC with a concise, written explanation describing the basis for contending the document is not subject to the Public Records Law. (iii)If applicable, provide WEDC with two copies of the document the Recipient contends is exempt — a clean copy and a copy with the exempted information redacted. (d) WEDC agrees to notify the Recipient if it receives a public records request for documents marked under Paragraph (c). 11. Additional Requirements. (a) Project Records. The Recipient shall prepare, keep and maintain such records as may be reasonably required by WEDC to validate the Recipient's performance under this Agreement and the performance reports provided to WEDC. (b) Inspection. (i) WEDC and its respective agents, shall, upon 48 hours advance written notice to the Recipient, have the right to enter the Recipient's premises, during normal business hours, to inspect the Recipient's operations documentation relating to this Agreement, provided, however, that such access does not unreasonably disrupt the normal operations of the Recipient. (ii) The Recipient shall produce for WEDC's inspection, examination, auditing and copying, upon reasonable advance notice, any and all records which relate to this Agreement. (iii)WEDC reserves the right to conduct a physical site visit of the Project while the Project is ongoing and after Project completion. Page 6 of 12 Contract at CDT I'Y14-2222 3 (c) Nondiscrimination in Employment. Consistent with Wis. Stat, § 16.765: In connection with the performance of work under this contract, Recipient agrees not to discriminate against any employee or applicant for employment because of age, race, religion, color, handicap, sex, physical condition, developmental disability as defined in § 51.01(5), sexual orientation or national origin, This provision shall include, but not be limited to, the following: employment, upgrading, demotion or transfer; recruitment or recruitment advertising; layoff or termination; rates of pay or other forms of compensation; and selection for training, including apprenticeship. Except .with respect to sexual orientation, Recipient further agrees to -take affirmative action to ensure equal employment opportunities. Recipient agrees to post in conspicuous places, available for employees and applicants for employment, notices to be provided by the contracting officer setting forth the provisions of the nondiscrimination clause. (d) Consolidation or Merger. During the term of this Agreement, the Recipient shall provide written notice to WEDC of any consolidation or merger with or into any other unrelated coaporation or business entity. (c) Public Announcement. -The Recipient agrees to work with WEDC in making a public announcement of this Agreement. . 12. Conflicts. In the event of any conflict between the provisions of this Agreement and any accompanying documents, the terms of this Agreement control. 13. Choice of Law. THIS AGREEMENT AND ALL MATTERS RELATING TO IT OR ARISING FROM IT — WHETHER SOUNDING IN CONTRACT LAW OR OTHERWISE — SHALL BE GOVERNED BY, AND SHALL BE CONSTRUED AND ENFORCED PURSUANT TO, THE LAWS OF THE STATE OF WISCONSIN. 14. Venue, Jurisdiction. Any judicial action relating to the construction, interpretation, or enforcement of this Agreement, or the recovery of any principal, accrued interest, court costs, attorney's fees and other amounts owed hereunder, shall be brought and venued in the U.S. District Court for the Western District of Wisconsin or the Dane County Circuit Court in Madison, Wisconsin, EACH PARTY HEREBY CONSENTS AND AGREES TO JURISDICTION IN THOSE WISCONSIN COURTS, AND WAIVES ANY DEFENSES OR OBJECTIONS THAT IT MAY HAVE ON PERSONAL JURISDICTION, IMPROPER VENUE OR FORUM NON CONVENIENS. 15.. Waiver of Right to Jury Trial. EACH PARTY WAIVES ITS RIGHT TO A JURY TRIAL IN CONNECTION WITH ANY JUDICIAL ACTION OR PROCEEDING .THAT MAY ARISE BY AND BETWEEN WEDC AND THE RECIPIENT -CONCERNING OR RELATING TO THE CONSTRUCTION, INTERPRETATION OR ENFORCEMENT OF THIS AGREEMENT, OR- THE RECOVERY OF ANY PRINCIPAL, ACCRUED INTEREST,. COURT COSTS, ATTORNEY'S FEES AND OTHER AMOUNTS THAT MAY BE OWED BY THE RECIPIENT HEREUNDER, 16. LIMITATION OF LIABILITY. RECIPIENT HEREBY WAIVES ANY RIGHT IT MAY HAVE TO CLAIM OR RECOVER FROM WEDC ANY SPECIAL, Page 7 of 12 Contractf, CDTFY14-22223 EXEMPLARY, PUNITIVE, CONSEQUENTIAL, OR DAMAGES OF ANY OTHER NATURE OTHER THAN ACTUAL DAMAGES INCURRED OR SUFFERED BY RECIPIENT. 17. Severability. The invalidity of any provision of this Agreement shall not affect the validity of the remaining provisions, which shall remain in full force and effect to govern the parties' relationship. 18. WEDC Not a Joint Venturer or Partner. WEDC shall not, under any circumstances, be considered or represented to be a partner or joint venturer of the Recipient or any beneficiary thereof. 19. Captions. The captions in this Agreement are for convenience of reference only and shall not define or limit any of the ternas and conditions set forth herein. 20. No Waiver. No failure or delay on the part of WEDC in exercising any power or right under this Agreement shall operate as a waiver, nor shall any single or partial exercise of any such power or right preclude any other exercise of any other power or right. 21. Entire Agreement. This Agreement embodies the entire agreement of the parties concerning WEDC's and the Recipient's obligations related to the subject of this Agreement, This Agreement may not be amended, modified or altered except in writing signed by the Recipient and WEDC. This Agreement supersedes all prior agreements and understandings between the parties related to the subject matter of this agreement. Page 8 of 12 Contr-act 4 CDD Y14-22223 IN WITNESS WHEREOF, WEDC and the Recipient have executed and delivered this Agreement effective the date set forth next to WEDC's signature below. WISCONSIN ECONOMIC DEVELOPMENT CORPORATION By: pJaKuester Date dent, Credit & Risk CITY OF OSHKOSH M k Rohloff Date City Manager By: Pam Ubrig l7ato city (hl y Necessary Provisions have be0l {!ads, Y the llabillly which will accrue unw, ,hi:,ntract. Ann A Notices to the Recipient he45 PAMRS Notices to WEDC hereunder shall be effective effective upon mailing by first class mail, postage upon mailing by first class mail, postage prepaid, prepaid, and addressed to the following person and addressed as follows: and address or such other person and address as the Recipient may designate in writing: City of Oshkosh PO Box 1130 Oshkosh, WI 54903 .Attn: Attn: Mark Rohloff APPROVa �e Wisconsin Economic Development Corporation Division of Credit & Risk F.O. Box 1687 Madison, W1 53701 Attn: Community Development Investment Contract # CDI FY14-22223 Page 9 of 12