[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.]
This Charter is issued to a tribal business to be known as "Wolf
River Development Company."
[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.
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.
For the purpose of this Charter, the following terms shall have
the following meanings:
The Constitution and Bylaws of the Menominee Indian Tribe
of Wisconsin.
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.
Generally accepted accounting principles.
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.
The Menominee Tribal Legislature, the tribal governing body
elected pursuant to Section 3, Article IV of the Constitution, and
their successors.
All revenues of WRDC from whatever source after subtracting
the cost of sales.
Any person included on the official roll of the Tribe.
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.
The Menominee Indian Tribe of Wisconsin.
Wolf River Development Company, a tribal business enterprise
chartered by the MTL.
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.
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.
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.
(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.
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.
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.
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.
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.
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.
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.
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.
