Tribal Government of Menominee Indian Tribe of WI Chapter 740 Wolf River Development Company

[HISTORY: Adopted by the Legislature of the Menominee Indian Tribe 11-5-1998 by Ord. No. 98-23; amended in its entirety 1-15-2015 by Ord. No. 14-33. Subsequent amendments noted where applicable.]

§ 740-1 Name of tribal business.

This Charter is issued to a tribal business to be known as "Wolf River Development Company."

§ 740-2 Purpose.

[Amended 10-15-2015 by Ord. No. 15-26]

The purpose of the Wolf River Development Company ("WRDC") is to investigate, review, consider, pursue and conduct any nongaming commercial activity of the Menominee Indian Tribe of Wisconsin ("Tribe") deemed advisable by the Board of Directors in order to generate profit, whether on or off the Menominee Reservation. The commercial activity may include for profit rental properties, retail business, manufacturing, consulting or any other lawful profit producing activity. In addition, the WRDC shall promote, support and foster the establishment of tribally owned businesses, and privately owned businesses on the Menominee Indian Reservation using outreach, land acquisition, financing, business planning support and other means as decided by the WRDC.

§ 740-3 Continuity of operations and dissolution of predecessor chartered entities.

A. This amendment reorganizes the existing Menominee Indian Economic Development Authority ("MIEDA"), the Wolf River Development Company ("WRDC") and the Menominee Fuel Station ("MFS") under the control of the reorganized Wolf River Development Company. The Wolf River Development Company, as reorganized by this Charter, shall continue to hold, control, manage and operate all properties, operations, obligations, contract rights, licenses and other rights and inurements of the 1) Menominee Indian Economic Development Authority as established pursuant to Ordinance Number 09-31, adopted by the Tribal Legislature on March 4, 2010, as amended, 2) the Wolf River Development Company established pursuant to Ordinance Number 98-23 adopted by the Tribal Legislature on November 5, 1998, as amended, 3) the Menominee Fuel Station established pursuant to Ordinance Number 05-29 adopted by the Tribal Legislature on October 6, 2005, as amended, shall automatically, upon the effective date of this Charter, succeed, without need of any further act or instrument, whether of conveyance or otherwise, to all interests whatsoever of its predecessor in interest in, and to hold, control, manage and operate, all such properties, whether tangible or intangible, operations, contract rights, licenses and other rights and inurements of said predecessor interests.

B. In furtherance of the provisions of this section, all valid and binding contractual and other obligations of said predecessors in interest existing on the effective date of this Charter are hereby assumed by the WRDC, which shall accordingly be obligated to perform in full each and every such contractual or other obligation heretofore entered into or assumed by said predecessor in interest. Moreover, each and every party to any such contract, instrument, document or agreement (other than said predecessor in interest) shall be a third-party beneficiary of this section and all other pertinent provisions of this Charter, and the WRDC shall, upon the effective date of this Charter, automatically succeed to all such preexisting contractual and other obligations without need for any further act or instrument, whether of assumption or otherwise, in favor of any such third-party beneficiary.

C. Sixty days after the adoption of this Charter, the charters of the MIEDA and the MFS are dissolved; however, nothing shall prohibit the WRDC from continuing to operate MIEDA and the MFS as separate entities under the control of the WRDC as authorized by this charter.

D. During the period between the adoption of this amended charter and the official dissolution of MIEDA and the MFS, the Boards of Directors and Managers of MIEDA and the MFS shall:

(1) Transfer all cash, records, agreements and other assets to the WRDC;

(2) Continue the normal day-to-day operations of MIEDA and MFS;

(3) Continue to employ any individuals of MIEDA and MFS who were employees of the entities prior to October of 2014; and

(4) Transfer all employees of MIEDA and MFS to the WRDC on a schedule and in a manner established by the WRDC.

E. During the period between the adoption of this amended charter and the official dissolution of the charters of MIEDA and the MFS, the Boards of Directors and Managers of the MIEDA and the MFS shall not:

(1) Enter or amend any agreements, policies, procedures or other documents;

(2) Sell, dispose of, transfer or otherwise encumber any assets or agreements;

(3) Make any investments or expend any funds other than normal payroll transactions or transactions with gasoline or supply vendors;

(4) Hire, terminate or otherwise alter the employment or consulting agreements with any employees or consultants; and

(5) Acquire, accept as donation or otherwise assume title to any property or equipment without the approval of the WRDC Board of Directors.

F. Immediately upon final passage of this amendment, the Internal Audit Department of the Tribe shall work with the external auditing firm to facilitate an audit and establishment of an accurate inventory for WRDC, MFS and MIEDA as of the date September 30, 2014. These audits will be completed within 120 days with a final report presented to Menominee Tribal Legislature. Cost of the audits will be borne by WRDC.

§ 740-4 Definitions.

For the purpose of this Charter, the following terms shall have the following meanings:

CONSTITUTION

The Constitution and Bylaws of the Menominee Indian Tribe of Wisconsin.

FELONY

Any state or federal crime where the punishment exceeds one year of imprisonment, or any crime under the laws of a federally organized Indian tribe, which is comparable in nature to such a state or federal crime.

GAAP

Generally accepted accounting principles.

JOINT VENTURE

Any agreement by contract, partnership, joint venture, or membership in a limited-liability company, limited-liability partnership or limited partnership between WRDC and another person or business, the purpose of which is to generate a profit.

MTL

The Menominee Tribal Legislature, the tribal governing body elected pursuant to Section 3, Article IV of the Constitution, and their successors.

NET REVENUE

All revenues of WRDC from whatever source after subtracting the cost of sales.

TRIBAL MEMBER

Any person included on the official roll of the Tribe.

TRIBAL REAL PROPERTY

Land held in trust for the Tribe by the Secretary of the Interior or land that is not held in trust but is owned by the Menominee Indian Tribe of Wisconsin.

TRIBE

The Menominee Indian Tribe of Wisconsin.

WRDC

Wolf River Development Company, a tribal business enterprise chartered by the MTL.

WRDC PERSONAL PROPERTY OR ASSETS

The personal property, including cash, and assets of the Tribe, the control of which is transferred to WRDC by the MTL, or any other entity.

§ 740-5 Powers.

WRDC shall have all the powers of a chartered tribal business pursuant to Article XIII of the Constitution and all powers necessary to conduct, manage, oversee, and operate any nongaming commercial activity for the purposes listed in § 740-2 of this Charter. WRDC is specifically authorized and empowered to:

A. Acquire property in its own name and to pledge, mortgage, lease, or otherwise encumber interests in such property as security for debts, and to acquire, sell, lease, exchange, transfer, or assign personal property or interests therein;

B. Consent, by specific written agreement with any party, to sue and be sued in its capacity as a tribal instrumentality upon any contract or obligation arising out of its authorized activities in any court of competent jurisdiction, and to consent to arbitration or mediation of disputes, and to consent to waiver of exhaustion of tribal remedies;

C. Receive, collect and own all revenues and pay all expenses and expenditures arising from or relating to its operations;

D. Purchase, take, receive, subscribe for, join, create or otherwise acquire, own, hold, vote, use, employ, sell, mortgage, loan, pledge, or otherwise dispose of, and otherwise use and deal in and with, shares or other interests in, or obligations of, limited-liability companies, corporations, associations, partnerships or other entities, or individuals, or direct or indirect obligations of the United States or of any other government, tribe, state, territory, governmental district or municipality, or of any instrumentality thereof;

E. Make and enter into contracts in furtherance of WRDC's purposes and to incur liabilities, indebtedness and other obligations, including the issuance of guarantees, and the borrowing of money at such rates of interest as WRDC may determine, and to issue its notes, bonds, debt securities and other obligations, and secure any of such obligations by mortgage or pledge of all or any of its property, franchises, revenues and income;

F. Employ contractors, consultants, agents, managers, advisers and accountants;

G. Lend money, invest and reinvest its funds, and take and hold real and personal property as security for the payment of funds so lent or invested;

H. Conduct its affairs, carry on its operations, hold property, and have offices and exercise the powers granted by this Charter;

I. Hire, supervise and terminate employees, consultants and agents of WRDC, and define their duties and fix their compensation;

J. Make and alter bylaws, not inconsistent with this Charter or with the laws, ordinances, and regulations of the Tribe and the United States, for the administration of the affairs of WRDC; and

K. Open and maintain such deposit and securities accounts with banks, securities intermediaries and other financial institutions, whether located within or without of the State of Wisconsin, and to deposit therein any or all revenues of WRDC, which accounts shall be separate from other accounts of the Tribe, and no assets in the accounts of WRDC shall be commingled with the other assets of the Tribe.

§ 740-6 Form of management.

The form of management of WRDC shall be a Board of Directors.

A. Board of Directors.

(1) Number of Directors and terms of Board of Directors. There shall be five members of the Board of Directors. The terms of the Board members appointed by the MTL shall be three years, except as provided for in Subsection A(5) below.

[Amended 1-18-2018 by Ord. No. 17-27]

(2) Powers and duties. The Board of Directors shall exercise all the powers and be responsible for all the duties of WRDC as set forth in this Charter and the ordinance adopting this Charter. The Board of Directors will determine the manner in which it will exercise its authority and responsibility for the management of the tribal business and the manner and extent to which such powers will be delegated to agents and employees of WRDC.

(3) Appointment. The Board of Directors shall be appointed by MTL.

(4) Qualifications.

(a) At least two members of the Board of Directors shall be members of the MTL.

[Amended 1-18-2018 by Ord. No. 17-27]

(b) All members of the Board of Directors shall be enrolled members of the Tribe.

(c) All members of the Board of Directors shall demonstrate, to the satisfaction of the MTL, experience and demonstrated interest in business and/or economic development.

(d) All members and applicants for membership of the Board of Directors must consent to a background investigation, including, but not limited to, drug testing, criminal and credit issues.

(e) No person may be a member of the Board of Directors who has been convicted of, or entered a plea of guilty or no contest to, any of the following within the immediately preceding 10 years, unless the person has been pardoned:

[1] A felony.

[2] A crime involving theft, misrepresentation or fraud.

(f) The MTL shall review said background investigation and, in its sole discretion, determine to its satisfaction that the member or applicant for membership is capable of carrying out the duties of a member of the Board of Directors and representing the interests of the Authority and the Tribe.

(5) Term. Directors who are Tribal Legislators shall serve a term that coincides with their term of office on the MTL, or for three years, whichever is less. All other Directors shall serve three-year terms.

[Amended 1-18-2018 by Ord. No. 17-27]

(6) Quorum. The presence of not less than three Directors shall be necessary to constitute a quorum of the Board of Directors for the transaction of business of WRDC, and the act of a majority of those members present and voting at a meeting at which a quorum is present shall be the act of WRDC.

[Amended 1-18-2018 by Ord. No. 17-27]

(7) Officers.

(a) The Board of Directors shall have the following officers with the following duties:

[1] Chairperson. The Chairperson of the Board of Directors shall be a member of the Board, and shall be elected at the first meeting of the Board of Directors and then annually thereafter. The Chairperson shall preside at all meetings of the Board of Directors, and shall perform all duties incident to the office of the Chairperson of the Board of Directors and such other duties as, from time to time, may be assigned by the Board of Directors. A Vice Chairperson, if elected, shall act in the capacity of the Chairperson in the absence of the latter, and shall discharge any other duties designated by the Chairperson.

[2] Secretary. The Secretary shall keep, or cause to be kept, the minutes of the meetings of the Board of Directors. The Secretary shall see that all notices are duly given in accordance with the provisions of this chapter. The Secretary shall be custodian of the seal and records, and shall perform all duties incident to the office of the Secretary, and such other duties as may, from time to time, be assigned to the Secretary by the Board of Directors.

[3] Other officers. The Board of Directors may appoint a Vice Chairperson, and Assistant Secretary to perform the duties of the Chairperson, and Secretary, respectively, in the absence of those officers.

(b) Any officer may be removed as an officer by the Board of Directors, whenever the Board of Directors believes it is in the best interest of WRDC to do so. Vacancies in any office shall be filled by the Board of Directors.

(8) Removal. The Tribal Legislature may remove any member of the Board of Directors for violating the code of conduct of WRDC or the Tribe, or for the purpose of ensuring that the composition of the Board is compliant with Subsection A(1) above.

[Amended 1-18-2018 by Ord. No. 17-27]

(9) Replacement of a member of the Board of Directors. Upon resignation, death, or removal of a member of the Board of Directors, the MTL shall appoint a new Director to fill the remainder of that Director's term of office, unless such appointment would cause the composition of the Board to be out of compliance with Subsection A(1) above.

[Amended 1-18-2018 by Ord. No. 17-27]

(10) Compensation. Members of the Board of Directors may receive a reasonable compensation for service on the Board; provided, however, that such compensation shall not exceed the compensation provided to Tribal Legislators for their service on the MTL.

B. Effect of appointment to Board of Directors. Appointment to the Board of Directors shall create no right of any kind to such office.

C. Reporting requirements.

(1) The Board of Directors, and any agent or employee of WRDC designated by the board, shall submit monthly reports to the MTL by the last Thursday of each month for the previous month. The report shall include, at a minimum: a current detailed balance sheet; an income statement that includes a comparison with the same month for the previous fiscal year, a comparative income statement for the current to date and previous fiscal year, an aged accounts receivable report; an aged accounts payable report and a narrative report on the activities of WRDC.

[Amended 9-17-2015 by Ord. No. 15-23]

(2) The Board of Directors shall submit a proposed annual budget to the MTL for their review and approval at least 60 days prior to the beginning of the new fiscal year. The annual budget will also include the minimum amount of revenue transfer to the Tribe, whether it be a percentage of profit or a fixed sum. The budget shall include a listing of any new indebtedness and investments anticipated for the upcoming fiscal year.

(3) The Board of Directors shall advertise and hold an annual meeting on the Menominee Indian Reservation. During the annual meeting, the Board of Directors shall provide reports to tribal membership on the financial condition of the WRDC, the business projects being managed by the WRDC, the private businesses being assisted by WRDC, future plans for WRDC and shall entertain questions from tribal membership on the operations of the WRDC.

(4) The Board of Directors shall receive approval from the MTL prior to incurring any single debt greater than $1,000,000.

(5) The Board of Directors shall receive approval from the MTL prior to making any single capital expenditure or any single investment greater than $5,000,000.

D. Conflict of interest. Pursuant to Article XVII, Constitution, individual members of the Board of Directors shall not make or participate in making any decision which involves an entity, property, business, transaction, supplier in which the board member, his/her spouse, parent, brother, sister, child, in-law or relative of a first degree owns, controls, manages or directs any interest, other than those interests held in common by all tribal members.

E. Standard of conduct.

(1) Members of the Board of Director shall not engage in criminal, infamous, dishonest, immoral or disgraceful conduct which would be detrimental to WRDC. Any act that, in the determination of the Board or the MTL shall be grounds for removal from office or the board.

(2) Members of the Board of Directors shall avoid conflicts of interest and the appearance of conflicts of interest.

(3) Members of the Board of Directors shall not use confidential information gained in the course of their appointment for private gain and only disclose confidential information with specific approval.

(4) Board of Directors members shall have no authority to act outside meetings, unless authorized by the Chairperson or action of the Board of Directors.

(5) Members of the Board of Directors shall focus their efforts through cooperation and positive interaction with each other through open communication and trust with each other.

(6) Members of the Board of Directors shall treat each other with respect and be supportive of WRDC.

(7) Members of the Board of Directors shall recuse themselves from any matter in which they have a conflict of interest. If the Board of Directors believes that a member of the Board has a conflict of interest and that Board member does not recuse himself or herself, the Board, by motion, may require that Board member to recuse himself or herself.

(8) Members of the Board of Directors shall maintain strict confidentiality regarding matters discussed in closed session.

(9) Any alleged violations of these standards of conduct, or alleged violations of WRDC bylaws, shall be brought to the MTL for resolution. Notwithstanding any other provision in this Charter, or any provision in MIEDA bylaws, the Board shall have no authority to impose a penalty on a member of the Board of Directors for such violations.

F. Indemnification. Each present, former, and future member of the Board of Directors shall be entitled to be reimbursed and indemnified from assets of WRDC for all legal and other expenses reasonably incurred by him in connection with any claim, action, suit or proceeding of whatever nature in which he may be involved as a party or otherwise by reason of his having served as a member of the Board of Directors or by reason of any action alleged to have been taken or omitted by him as a member of the Board of Directors (including settlement amounts approved by a majority of the Board of Directors then in office other than those involved), provided that WRDC need reimburse such Board member's legal fees and expenses only if they are incurred after the Board of Directors has refused to provide legal representation to the member at WRDC's expense. No such reimbursement or indemnification shall be made in connection with any matter arising out of the negligence or misconduct of such Board of Directors members. Neither this section nor any action or inaction by the Board under this section shall create any liability against the Board of Directors or WRDC.

§ 740-7 General manager.

A. Appointment of general manager. The Board of Directors shall appoint a general manager within 60 days of the approval of this Charter by the MTL. The hiring process shall conform with the laws and practices of the Tribe, including but not limited to Chapter 170, Article I, Tribal Preference.

B. Qualifications of general manager. The general manager shall possess at least a bachelor's degree and shall show an understanding of business management and economic development principles as determined by the Board through the use of interviews, evaluation or testing. He/she shall have a verifiable record of successful executive and business experience, and shall have such other related skills as are deemed necessary or desirable by the Board of Directors.

C. Duties of general manager. The general manager shall, subject to the direction and control of the Board of Directors, be responsible for the administration and management of WRDC operations. The general manager shall:

(1) Manage and control WRDC operations subject to all applicable federal, state, and tribal laws;

(2) Submit all contracts obligating WRDC by an amount in excess of $50,000 to the Board of Directors for approval, unless the Board, through resolution, authorizes the general manager to execute contracts in excess of this amount;

(3) Develop personnel policies and procedures which reflect the specific requirements of WRDC on an as-needed basis, subject to the ratification or approval of the Board of Directors;

(4) Conduct all accounting and fiscal matters pursuant to a system approved by the Board of Directors, and ensure the proper amount of insurance coverage is in place for the WRDC, including general liability and coverage to protect the Board of Directors;

(5) Make reports to the Board of Directors on at least a monthly basis and more often if so requested;

(6) Prepare and propose a budget for each fiscal year which shall be submitted to the Board of Directors for approval; and

(7) Perform such other duties as the Board of Directors shall direct.

D. Reimbursement and indemnification. The general manager shall be entitled to be reimbursed and indemnified by the WRDC for all legal and other expenses reasonably incurred in connection with any claim, action, suit, or proceeding of whatever nature in which he may be involved by reason of having served as general manager. Reimbursement and indemnification under this subsection include amounts paid or incurred in connection with reasonable settlements designed to curtail litigation costs. No such reimbursement or indemnification shall relate to any expense incurred or settlement made in connection with any matter arising out of the negligence or misconduct of the general manager, as determined by the Tribal Courts.

§ 740-8 Fiscal practices.

A. General method of operation. The WRDC shall be operated in an efficient, businesslike manner in accordance with this Charter. The Board of Directors shall, in addition to following other businesslike practices consistent with the above guidelines:

(1) Establish and operate under an accounting system that is in accordance with GAAP and is approved by an independent certified public accounting firm chosen by the Menominee Tribal Legislature;

(2) Establish an inventory control system, including an inventory of property taken as of the last day of business of each fiscal year of the WRDC;

(3) Cause an annual audit of the WRDC by an independent certified public accounting firm chosen by the Menominee Tribal Legislature as of the last day of business of each fiscal year of the WRDC;

(4) Prepare an annual financial statement of the operations of the WRDC;

(5) Prepare monthly financial statements of the WRDC;

(6) Prepare a proposed budget, which shall constitute a plan of operation for the WRDC, prior to the beginning of each fiscal year. Said budget and plan of operation shall clearly delineate capital expenses and shall contain a narrative explaining in detail the WRDC's goals, objectives, and priorities and plans for meetings those goals, objectives and priorities for the coming fiscal year, and any budget modification or combination of budget modifications that result in the reprogramming of more than 20% of the original approved budget during any fiscal year shall be approved by the Menominee Tribal Legislature;

(7) Establish and maintain a fiscal year consistent with the Tribe's fiscal year;

(8) Prepare an initial start-up plan, including an initial budget and plan for obtaining start-up capital;

(9) Prior to entering in to any new business venture, prepare a business plan which includes revenue and expense projections, marketing plans, feasibility studies, proposed management, financing and any other information necessary to adequately determine the viability of such venture; and

(10) Conduct all transfers of assets according to the requirements any deeds existing prior to the amendment of this chapter.

B. Distribution of net profits. Subject to applicable restrictions reflecting the terms of any contractual agreement entered into by WRDC, all net revenues, after satisfaction of debt service obligations, other costs and expenses of WRDC, and after reserving such funds as may in the judgment of WRDC be reasonably required for the continuing operation of WRDC in the ordinary course of its business, including capital expenditures to maintain the plant, property and equipment of the business, shall be remitted to the general fund of the Tribe for disposition by the MTL on at least an annual basis, provided that with the approval of the MTL, WRDC may reserve such additional funds as may be required for approved capital expansion projects related to its operations.

C. Records; inspections; audits. The books, records and property of the WRDC shall be available for inspection at all reasonable times by authorized representatives of the Tribe.

§ 740-9 Assets.

A. WRDC's assets shall consist of all revenues, earnings and proceeds of the same and whatever other assets it develops, generates or acquires by other means, including through borrowing. Notwithstanding the foregoing, for purposes of clarification and the avoidance of doubt, upon transfer of funds or property from the accounts of WRDC to the general funds or other accounts of the Tribe in compliance with all contractual restrictions applicable to WRDC, such funds shall cease to be assets of WRDC without the requirement of further act or deed.

B. Within 60 days of the adoption of this amended Charter, WRDC shall also assume responsibility and ownership of the assets, agreements and liabilities of the MIEDA and the MFS.

§ 740-10 Compliance with applicable laws; exercise of powers.

A. Compliance with laws. WRDC shall exercise the duties and powers delegated to it under this Charter in conformity with all applicable laws.

B. Best interests of Tribe. WRDC shall at all times exercise the duties and powers delegated to it under this Charter in the best interest of the Tribe.

C. Policies and procedures. WRDC shall adopt such policies and procedures as it may determine necessary for the orderly conduct of its business.

§ 740-11 Tribal sovereignty and immunity.

A. The Tribe hereby gives its consent to allowing the WRDC, by specific written agreement with any party, to sue and be sued in its capacity as a tribal business upon any contract, claim, or obligation arising out of its activities authorized by this Charter and hereby authorizes the WRDC to agree, by specific written agreement, to waive any immunity from suit which it might otherwise have. Subject to the provisions of this Charter, the WRDC is authorized to pledge, mortgage, or otherwise encumber the assets of the WRDC as security for debts and to acquire, sell, lease, exchange, transfer, or assign personal property or interests therein. In no event shall any assets of the Tribe, including tribal forest land and other tribal land, be subject to any obligations of the WRDC unless specifically authorized by the Constitution.

B. This Charter shall not, except as specifically provided, operate as a partial or total waiver of the sovereign immunity of the Tribe. The Tribe in no way waives or limits its sovereign and governmental powers in regard to the WRDC or operations of the WRDC.

C. The WRDC shall be entitled to, and the Tribe in no way waives, the exemptions and immunities from taxation to which American Indian tribes, their members, and their businesses are entitled by law.

§ 740-12 Termination of Charter.

If this Charter is terminated by the MTL, the Board of Directors shall promptly relinquish control over all assets and liabilities of the WRDC to the MTL, acting on behalf of the Tribe, or to such other entity as the MTL shall designate. The Board of Directors shall also promptly deliver all books and records of the WRDC to the MTL, acting on behalf of the Tribe, or to such other entity as the MTL shall designate.

§ 740-13 General provisions.

A. Principal place of business. The principal office of the WRDC shall be located on the Menominee Indian Reservation. WRDC may have such other offices as the Board of Directors may designate and as the business of WRDC may require from time to time.

B. Agent for service of process. The Board of Directors shall designate an agent of the WRDC for the purpose of accepting service of process. The business address of such agent shall be the principal office of the WRDC.

C. Seal. The Board of Directors may provide a seal of the WRDC.

D. Duration. This Charter shall remain in effect unless revoked by ordinance.

E. Cooperation between the Board of Directors and the MTL. In the implementation of this Charter, the Board of Directors and the MTL shall work together and cooperate in order to promote the best interests of the Tribe.