HomeMy Public PortalAboutORD14009 • BILL NO. 2005-144
SPONSORED BY COUNCILMAN Berry
ORDINANCE NO. I Il L,1,9C�
AN ORDINANCE OF THE CITY OF JEFFERSON, MISSOURI, AUTHORIZING THE
MAYOR AND CITY CLERK TO ENTER INTO A TAX CREDIT AGREEMENT ON BEHALF
OF THE MISSOURI FARM BUREAU FOUNDATION WITH THE MISSOURI
DEVELOPMENT FINANCE BOARD FOR THE CONSTRUCTION OF AN AGRICULTURAL
MUSEUM.
WHEREAS, On January 17, 2006, the Missouri Development Finance Board
approved the Missouri Farm Bureau Project as provided by Section 100.286.6 of the
Revised Statutes of Missouri (the "Tax Credit Statute");
WHEREAS, This project will benefit the City of Jefferson and the citizens of the
State of Missouri.
NOW,THEREFORE BE IT ENACTED BYTHE COUNCIL OFTHE CITY OF JEFFERSON,
MISSOURI, AS FOLLOWS:
• Section 1. The Mayor and City Clerk are hereby authorized to enter Into a project
agreement on behalf of the Missouri Farm Bureau Foundation for Agriculture for the
Agricultural Museum Project off Hwy 50 and S. Country Club Drive In Jefferson City.
Section 2.The agreement shall be substantially the same in form and content as the
agreement attached hereto as Exhibit A.
Section 3. This Ordinance shall be in full force and effect from and after the date of
Its passage and approval.
Passed: -���� U�n Approved: 0 6
Presiding Officer Mayor
ATTEST: APPROVED AS TO FORM:
01u42
. City CI irk City Counselor
fL4009
• TAX CREDIT AGREEM ENT
(Agriculture Muscurn Project)
TIUS TAX CREDIT AGREEMENT, dated as of the if day of January, 2006 (the
"Agreement"), by and among the MISSOURI DEVELOPMENT FiNANCE BOARD, a body
corporate and politic of the State of Missouri (the"Board"), ilia CITY OP JEFFERSON, MISSOURI,
a home rule charter city organized and existing under the laws of ilia Stale of Missouri (the "Public
Entity"), and the MISSOURI FARM BUREAU FOUNDATION FOR AGRICULTURE, a Missouri
nonprofit corporation ("Nonprofit Entity");
1VITNESSETII:
WHEREAS, Section 100.286.6 of the Revised Statutes of Missouri (the "Tax Credit Statute")
provides that any taxpayer shall be entitled to a tax credit against any tax otherwise due under the
provisions of Chapter 143, R.S.Mo, excluding withholding tax imposed by Sections 143.191 to 143.261,
R.S.Mo, Chapter 147, R.S.Mo, or Chapter 148, R.S.Mo, in the amount of fifty percent of any amount
contributed in money or property by the taxpayer to the development and reserve fund, the infrastructure
development fund or the export finance fund during the taxpayer's tax year, provided, however,the total
tax credits awarded in any calendar year beginning nfier January 1, 1994, shall not be the greater of ten
million dollars or five percent of the average growth in general revenue receipts in the preceding three
• fiscal years;and
WHEREAS, ilia Public Entity and the Nonprofit Entity have requested that the Board accept
contributions from donors and make the proceeds of such contributions available to the Public Entity for
the purpose of paying a portion of the cost of financing the project described on Exhibit A hereto (the
"Project"), all as more fully described in the application for assistance submitted to the Board (all as
attached hereto as Exhibit 13, collectively,the"Project Application"); and
WHEREAS, at a meeting of the Board held on January 17, 2006, the Public Entity and the
Nonprofit Entity made written and oral presentations to the Board concerning the Project and the Project
Application;and
WHEREAS, the Project will significantly benefit Jefferson City, Missouri and the Stale of
Missouri by; (i) further enhancing educational opportunities for residents of Jefferson City,Missouri and
the State of Missouri, and (ii) further enhancing tourism activities in the City of Jefferson thereby
increasing local and slate tax revenues; and
1IIEREAS,pursuant to a motion of the Board adopted at its meeting held January 17,2006, the
Board approved the Project Application and directed the Executive Director to work with the Public
Entity and the Nonprofit Entity in the preparation of this Agreement for the purpose of setting forth the
terms and conditions upon which contributions will be accepted by the Board and how the proceeds of
such moneys will be applied; and
WHEREAS, the Board, the Public Entity and the Nonprofit Entity desire to enter into this
• Agreement for the purpose of setting forth the terns and conditions pursuant to which the Board will
accept contributions and deposit such contributions into the infrastructure development fund for the
purposes set forth herein,all subject to the terms of this Agreement.
• NON, THEREFORE, in consideration of the mutual covenants and agreements herein set
forth, the Board, the Public Entity and the Nonprofit Entity hereby covenant and agree as follows:
ARTICLE 1
DEFINITIONS
In addition to the terms defined in the Recitals to this Agreement and elsewhere herein, as used
in this Agreement the following terms shall have the following meanings:
"Application" means the request for assistance submitted to the Board by the Public Entity and
the Nonprofit Entity attached hereto as Exhibit B. For the purposes of this Agreement, the parties
acknowledge that the Project shall consist of the Project described in Exhibit A hereto.
"Contribution" means any contribution received by the Board pursuant to and in accordance
with this Agreement.
"Disbursement Request"means the Disbursement Request referred to in Section 4.3 hereof and
the form of which is attached hereto as Exhibit C.
"Donor"means any person making a contribution to the Board.
• "Material" means a standard for materiality pursuant to which any change or amendment
would, when added to all such other changes or amendments, result in a prudent person considering such
change or amendment material or would impact any individual line item of the Project Budget by 10%or
more. Any change shall be deemed Material if the Board notifies the Public Entity and the Nonprofit
Entity, prior to the effective date of such change, that the Board considers such change to be Material.
Notwithstanding the foregoing, no change to any line item shall be deemed Material if the cost of such
change(when added to all similar changes which were not Material) is less than 10%of such line item.
"Maximum Contributions"shall have the meaning set forth in Section 3.1 hereof.
"Maximum Tax Credits" shall have the meaning set forth in Section 3.1 hereof.
"Project"means the projects described in the Application, including the acquisition, demolition,
environmental remediation, site clearing, site preparation, and site improvements of the real and personal
property described in Exhibit A, and any additions, modifications, equipment, replacements, repairs,
reconstruction, restoration or substitutions thereto, approved by the Board.
"Project Budget" means the aggregate Project Budget described the Application, mid any
amendments, revision or additions thereto made in accordance with Section 5,8(a)of this Agreement.
"Project Costs" means all reasonable or necessary costs and expenses, as more fully described
on Exhibit D, for the Project described in Exhibits A and B.
• "Tax Credits" means lax credits issued by the Board in accordance with the Tax Credit Statute
and this Agreement in consideration of Contributions.
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"Tax Credit Statute"shall have the meaning set forth in the Recitals.
ARTICLE II
FINDINGS AND DETERMINATIONS;
REPRESENTATIONS AND WARRANTIES
Section 2.1. Board's Determination of Project Benefit. The Board hereby finds and
determines as follows:
(a) The Project will significantly benefit Jefferson City, Missouri and the State of
Missouri by: (i) further enhancing educational opportunities for residents of Jefferson City,
Missouri and the Slate of Missouri, and (ii) further enhancing tourism activities in the City of
Jefferson thereby increasing local and state tax revenues;
(b) The benefits to be derived by the State of Missouri are expected to exceed the
benefits provided by the Board by this Agreement;
(c) The Board's participation is a material precondition to the completion of the
Project, and the Project would not proceed as presented to the Board without the assistance
provided by the Board.
• Section 2.2. Public Entity's Determination of Project Benefit and Representations and
Warranties. The Public Entity hereby finds and determines as follows:
(a) The Project will significantly benefit Jefferson City, Missouri and the State of
Missouri by: (i) further enhancing educational opportunities for residents of Jefferson City,
Missouri and the State of Missouri, and (if) further enhancing tourism activities in the City of
Jefferson thereby increasing local and state tax revenues;
(b) The benefits to be derived by the State of Missouri are expected to exceed the
benefits provided by the Board by this Agreement;
(c) The Project would not proceed as presented to the Board without the assistance
provided by the Board.
(d) The Public Entity is a (i)home rule charter city organized and existing under the
laws of the Slate,and (if)has lawfully executed and delivered this Agreement.
(e) The execution and delivery of this Agreement by the Public Entity will not result
in a breach of any of the terns of,or constitute a default under, any indenture, mortgage, decd of
trust, lease or other agreement or instrument to which the Public Entity is a party or by which it
or any of its property is bound or its bylaws or any of the constitutional or statutory rules or
regulations applicable to the Public Entity or its property.
Section 2.3. Nonprofit Entity's Determination of Project Benefit and Representations
• and Warranties, The Nonprofit Entity hereby represents and warrants as follows:
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(a) The Project will significantly benefit Jefferson City, Missouri and the Stale of
Missouri by: (i) further enhancing educational opportunities for residents of Jefferson City,
Missouri and the State of Missouri, and (ii) further enhancing tourism activities in the City of
Jefferson thereby increasing local and state tax revenues;
(b) The benefits to be derived by the State of Missouri are expected to exceed the
benefits provided by the Board by this Agreement;
(c) The Project would not proceed its presented to the Board without the assistance
provided by the Board.
(d) The Nonprofit Entity (1) is a nonprofit corporation organized and existing under
the laws of the State of Missouri, (2) has lawful power and authority to execute and deliver this
Agreement and to carry out its obligations thereunder and hereunder, and (3) by all necessary
corporate action has been duly authorized to execute and deliver this Agreement, acting by and
through its duly authorized officers.
(e) The execution and delivery of this Agreement by the Nonprofit Entity will not
result in a breach of any of the terms of, or constitute a default under, any indenture, mortgage,
deed of trust, lease or other agreement or instrument to which the Nonprofit Entity is a party or
by which it or any of its property is bound or its bylaws or any of the constitutional or statutory
rules or regulations applicable to the Nonprofit Entity or its property.
• Section 2.4. No Private Benefit. The Public Entity and tine Nonprofit Entity represent and
warrant that no portion of the Project or the proceeds of the Contributions shall benefit any private
person, except for such benefits as may be conferred to private persons through the ordinary course of
business of the Nonprofit Entity in the development, construction and operation of the Project, and in
furtherance of its charitable purposes.
ARTICLE III
CONTRIBUTIONS AND TAX CREDITS
Section 3.1. Agreement to Accept Contributions and issue Tax Credits. Subject to the
requirements set forth herein, the Board hereby agrees to accept Contributions from Donors in a
maximum aggregate amount of $1,252,000 ("Maximum Contributions"), resulting in the potential
issuance of Tax Credits in the maximum amount of $ 626,000 ("Maximum Tax Credits") and to
deposit such Contributions into the Board's infrastructure development fund, and to issue such Donors'
Tax Credits in all amount not to exceed the lesser of(i) 50% of the amount of such Contribution, or
(ii)the then current maximum amount authorized under the Tax Credit Statute. Notwithstanding that the
Maximum Tax Credits available hereunder equals $626,000, the Public Entity and ilia Nonprofit Entity
agree that the issuance of ilia Maximum Tax Credits in each of the following calendars years shall be
limited as follows:
Calendar Year Annual Maximum Amount
• 2006 $250,000
2007 $376,000
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The amount of each Contribution shall be determined as provided in the Tax Credit Statute and
as provided herein.
Any portion of the Annual Maximum Amount for 2006 for which neither the Public Entity nor
the Nonprofit Entity has received written commitments for contributions prior to November 1, 2006 in a
form acceptable to the Board shall he forfeited effectivc midnight on November 1, 2006, unless the
Board, in its sole and absolute discretion, elects 10 reinstnte all or any portion thereof during 2007. Any
portion of the Annual Maximum Amount for 2007 for which the Public Entity nor the Nonprofit Entity
has received written commitments for contributions prior to November 1, 2007 in a fornn acceptable to
the Board shall be forfeited effectivc midnight on November 1, 2007. This paragraph shall not restrict
the owner of any Tax Credit from utilizing the benefits of the carry forward provisions contained in tine
Tax Credit Statute.
Section 3.2. Submission of Form 100. The Board shall process each Contribution which is
accompanied by a properly completed Form 100 and any other documents required by Missouri law.Any
Contribution which is received for which the Board does not have a properly completed Form 100 and
any other documents required by Missouri law shall be held by the Board until such documents are
provided or, at the option of the Board, returned to the Donor with a written notation stating why such
Contribution is being returned. A copy of each returned donation shall also be sent to the Nonprofit
Entity. The Board reserves the right to require any additional information which the Board determines to
be necessary to comply with the Board's statutes,as they may be amended from time to time.
' Section 3.3. Minimum Donation. Ilia Board shn11 not accept any donation in an amount
less than $1,000.00. Any donation which is received for less than such minimum amount shall be
returned to the Donor with a written notation stating that donations must be made in the minimum
amount of$1,000.00. A copy of each retuned donation shall also be sent to the Nonprofit Entity.
Section 3.4. Processing Donations. The Board shall promptly process all completed
donations. The Board expects that once a properly completed Form 100 and all other required
documents are received by the Board, together with ilia Contribution, the Board will issue or cause to be
issued the Tax Credits within 45 calendar days, but not more frequently than once a month.
Section 3.5. Determination of Amount of Contribution. The amount (or value) of cash
Contribution shall be determined by the Board as follows:
Cash. The amount (or value) of cnsh Contributions shall be the face amount of such
Contribution.
Marketnblc Securities. The amount (or value) of marketable securities shall be the proceeds
received by the Board from the liquidation of such marketable securities in accordance with the Donor's
instructions approved and accepted by the Board, less the Board's costs of selling such securities.
Unmarketable Securities and Other Property. No contributions of unmarketable securities or
other property shall be pennitted under this Agreement.
All such detcnninnlions by the Board shall, absent manifest error, be conclusive and binding upon the
Donors, the Public Entity, and the Nonprofit Entity. The Board reserves the right to reject any
) Contribution.
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Section 3.6. Nonprofit Entity Notice of Estimated Usable Tax Credits. On or before
October 2 in 2006 and 2007, the Nonprofit Entity shall notify the Board in writing of that portion of the
Maximum Tax Credits the Nonprofit Entity intends to utilize(tile"Estimated Usablc Tnx Credits") prior
to the following November 1. In the event such amount is less than the Maximum Tax Credits for such
year, the Board shall be entitled to use the difference between the Maximum Tax Credits and the
Estimated Usable Tax Credits for any other project of the Board unless, with respect to the Maximum
Tax Credits for 2006 only, the Nonprofit Entity has requested and the Board, in its sole and absolute
discretion, has elected to reinstate all or any portion of such Maximum Tax Credits during 2007. The
Nonprofit Entity understands and agrees that the maximum amount of tax credits the Board may issue in
each calendar year is limited by the Tax Credit Statute. The Nonprofit Entity agrees to fully cooperate
with the Board's efforts to use any tax credits provided hereunder which are not expected to be used by
the Nonprofit Entity.
Section 3.7. Donations in Excess of Maximum Contributions. The Board, the Public
Entity and the Nonprofit Entity agree that in the event the Board receives in any year Contributions in
excess of the Maximum Contribution set forth fn Section 3.1 hereof,the Board shall return such donation
to the Donor thereof with a statement that Tax Credits are no longer available for such donations. A
copy of each returned donation shall also be sent to the Nonprofit Entity.
ARTICLE IV
APPLICATION OF CONTRIBUTIONS
• Section 4.1. Board's Application of Contributions. All Contributions received by the
Board shall be deposited in the same manner as other amounts received by the Board, and the amount of
such Contributions shall be maintained by the Board on its books and records (the "Board Project
Account"), All moneys on deposit in the Board Project Account shall be invested by the Board in
accordance with its investment guidelines. All interest earnings on such amounts shall accrue to the
Board and shall not be credited to the Board Project Account,
Section 4.2. Disbursements from the Board Project Account. The Board shot] disburse
amounts from the Board Project Account upon receipt of fully executed disbursement requests in the
form attached hereto as Exhibit C (each a "Disbursement Request"). The Board shall be entitled to
rely upon each Disbursement Request fn disbursing amounts from the Board Project Account and it shall
have no duty to conduct any investigation into the authenticity of the signatures on such Disbursement
Request or the accuracy of the infornnntion set forth therein.
Section 4.3. Procedures for Disbursements. The Board, the Public Entity and the
Nonprofit Entity hereby agree to the following procedures in connection with disbursements from the
Board Project Account:
(a) All Disbursement Requests shall be submitted to the Board for approval as
provided fn Section 4.4 hereof. All payments from the Board Project Account shall be made
Payable to the Public Entity for further disbursement to the Nonprofit Entity or as the payees set
forth fn the Disbursement Request.
• (b) ]a no event shall the Nonprofit Entity submit more than one Disbursement
Requests to the Board each month, unless approved by the Board's Executive Director.
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Section 4.4. Processing of Disbursement Requests. Within tell (10) business days after the
submission of a fully completed Disbursement Request to the Board, the Controller shall process such
request for payment or immediately notify the Nonprofit Entity of any information needed to process
such Disbursement Request.
Section 4.5. Deduction of Board Fees and Expenses. Concurrently upon the receipt of each
Contribution the Board shall deduct a program assessment mid administrative fee in an amount equal to
4% of the amount of all Contributions, and its actual out-of-pocket expenses (including the fees and
expenses of the Board's counsel) incurred by the Board in the execution and administration of this
Agreement and shall furnish the Public Entity and the Nonprofit Entity a detailed description of such
deductions nt least quarterly. Concurrently with the execution of this Agreement (or if no moneys are on
deposit in the Board Project Account at the time this Agreement is executed, then as soon thereafter as
amounts are designated therein) the Board shall deduct from the Board Project Account the legal fees
and expenses of Gilmore & Bell, P.C. in an agreed upon amount of 5500. Such payment shall cover all
legal fees and expenses of the Board relating to the Board's approval of the Application and the
execution of this Agreement.
Section 4.6. Return of Contributions. in the event the Nonprofit Entity or the Public Entity
shall notify the Board that the Project has been abandoned for any reason or upon an event or default
under Section 6.1 hereof, then all Contributions held by the Board pursuant to Section 4.1 hereof or held
by the Public Entity or the Nonprofit Entity pursuant to Section 4.2 hereof shall be applied as follows:
(i) first, to reimburse the State for the cost of Tax Credits issued hereunder and actually used by the
Donor with respect to such Contributions, (ii) second, if requested by a Donor in writing, returned to the
• Donor after deducting any amount due to file State under (i) above, and (iii) third, used to pay for
infrastructure projects the Board and the Public Entity mutually determine are beneficial to the Public
Entity and the State of Missouri. The Board agrees that it will provide a written notice to each Donor
who would be entitled to any Contribution return. in determining the cost to the State of such Tax
Credits the Board shall assess interest on such Tax Credits in an amount equal to 77te Bond Buyer s 20
Bond Index published in The Bond Buyer on the day such calculation is made. Notwithstanding any
other provision of this Agreement, Contributions which are expended by the Nonprofit Entity in
accordance with this Agreement shall not be subject to return nor shall such credits be subject to
recapture.
ARTICLE V
THE PROJECT; RECORDS AND REPORTS
Section 5.1. Access to the Project and Inspection; Operation of the Project. The Board
and the duly authorized agents of the Board shall have the right, at all reasonable times upon the
furnishing of reasonable advance notice under the circumstances, to enter upon the Project and to
examine and inspect the Project. Tile Board and the duly authorized agents of the Board shall also be
permitted, at all reasonable times upon reasonable advance notice under the circumstances, to examine
the books and records of the Public Entity and the Nonprofit Entity with respect to the Project and the
Contributions and the obligations of the Public Entity and the Nonprofit Entity hereunder.
Section 5.2. Reports and Financial Statements by the Nonprofit Entity. Beginning on the
• dale of the execution of this Agreement and ending one year following the inter of the final disbursement
of any Contributions held by the Board aid payment of all costs of the Nonprofit Entity in connection
with the Project, the Nonprofit Entity shall cause to be furnished to the Board:
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• (a) On a quarterly basis, a detailed summary of the status of the Project and the
capital campaign fundraising efforts of the Nonprofit Entity.
(b) As soon as practicable alter they are available but in no event more than 60 days
after the end of each quarterly fiscal period of each fiscal year,the unaudited financial statements of
the Nonprofit Entity for such period.
(c) As soon as practicable after they are available but fit no event more than 150 days
after the last day of each fiscal year, the audit report and audited financial statements of the
Nonprofit Entity for such fiscal year certified by the Nonprofit Entity's independent certified public
accountants prepared in accordance with generally accepted accounting principles.
(d) As soon as practicable after they are filed copies of the IRS Form 990 and Form
990-T filed with the Internal Revenue Service for the most recent tax year .
(c) Copies of all (i) loan documents executed by the Nonprofit Entity, (ii) lease or
sublease agreements (having a term of at least one year or more) relating to the Project and
executed by the Nonprofit Entity and (iii) management or consulting agreements relating to a
substantial portion of the Project and executed by the Nonprofit Entity.
(n Such additional information as the Board may reasonably request concerning the
Nonprofit Entity, including such statistical and other operating information requested on a
• periodic basis.
In addition, pursuant to subsections 2 and 9 of Section 135.805, RSMo, the Nonprofit Entity
shall provide annually to the Board, for a period of three years following issuance of Tax Credits,
information confirming whether the Project is used for residential, commercial, or governmental
purposes, and the projected or actual Project Costs, labor cost, and date of completion of the Project,
which reporl is due on June 30th of each year beginning on the first June 30th that is at ]cast one year
after the issuance date of the Tax Credits.
Section 5.3. Reports by the Board to the Nonprofit Entity and the Public Entity. Upon
tlae written request of the Nonprofit Entity or the Public Entity, the Board shall furnish such information
concerning the Board's receipt and disbursement of Contributions as the Nonprofit Entity or the Public
Entity may reasonably request, but not more frequently than monthly.
Section 5.4. Reports by the Public Entity to the Board. The Public Entity shall furnish the
Board with any reports relating to the Project prepared by it for distribution to its City Council members.
Section 5.5. Indemnification.
(a) file Nonprofit Entity releases the Board and the Public Entity from, and agrees
that the Board shall not be liable for, and indemnifies the Board and the Public Entity against, any
liabilities, losses,damages(including atlomcys' fees), causes of action, suits, claims, costs and expenses,
demands and judgments of any nature imposed upon or asserted against the Board or the Public Entity
(except to the extent that any of the foregoing arises as a result of the gross negligence or willful
• misconduct of the Board or the Public Entity, as applicable, or any of their officials, commissioners,
directors, officers, attorneys, accountants, employees or agents) on account of. (i) tiny loss or damage to
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property or injury to or death of or loss by any person that may he occasioned by any cause whatsoever
pertaining to the acquiring, constructing, demolishing, renovating, improving and operation of the
Project; (ii) nny breach or default on the part of the Nonprofit Entity in the perfomtance of arty covenant
or agreement of the Nonprofit Entity under this Agreement or any related document, or any of its agents,
contractors, servants, employees or licensees; (iii) violation of any law, ordinance or regulation affecting
the ownership, occupancy or use of the Project; (iv) any loss suffered by any Donor as a result of the
inability of the Donor to use any Tax Credit issued by the Board, other than its a result of the failure of
the Board to issue such Tax Credit upon receipt by the Board of the necessary information, (v) any loss
resulting from any environmental violation at the Project, and (vi)any claim or action or proceeding with
respect to the matters set forth in subsections(i), (ii), (iii), (iv)and (v)above brought thereon.
(b) in case any action or proceeding is brought against the Board or the Public
Entity in respect of which indemnity may be sought hereunder, the Board and/or the Public )entity shall
promptly give notice of that action or proceeding to the Nonprofit Entity, and the Nonprofit Entity upon
receipt of that notice shall have the obligation and the right to assume the defense of the action or
proceeding; provided, that failure of a party to give that notice shall not relieve the Nonprofit Entity from
any of its obligations under this Section unless that failure prejudices the defense of the action or
proceeding by the Nonprofit Entity. Any one or more of the indemnified parties shall have the right to
employ separate counsel with respect to any such claim or in any such action and to participate in the
defense thereof, but the fees and expenses of such counsel shall be at the expense of such indemnified
party or indemnified parties unless the employment of such counsel has been specifically authorized, in
writing, by the Nonprofit Entity or the indemnified parties reasonably conclude that there is a conflict of
interest that would prevent counsel for the Nonprofit Entity from adequately representing both the
• Nonprofit Entity and the indemnified parties. The Nonprofit Entity shall not be liable for any settlement
without its consent.
(c) Tlnc indemnification set forth above is intended to and shall include the
indemnification of all affected officials, directors, officers, attorneys, accountants, financial advisors and
employees of the Board and the Public Entity. That indemnification is intended to and shall be
enforceable by the Board and the Public Entity to the full extent periniticd by law.
(d) The Public Entity releases (lie Board from, and agrees that the Board shall not be
liable for, any liabilities, losses, damages (including attorneys' fees), causes of action,suits,claims, costs
and expenses, demands and judgments of any nature on account of., (i) any loss or damage to property or
injury to or death of or loss by any person that may be occasioned by any cause whatsoever pertaining to
the acquiring, constructing, demolishing, renovating, improving and operation of the Project; (ii) any
breach or default on the part of the Nonprofit Entity in the performance of any covenant or agreement of
the Nonprofit Entity under this Agreement or any related document, or arising from any act or failure to
act by the Nonprofit Entity, or any of its agents, contractors, servants, employees or licensees;
(iii)violation of any law, ordinance or regulation affecting the ownership, occupancy or use of the
Project; (iv) any loss suffered by any Donor as a result of the inability of the Donor to use any Tax Credit
issued by the Board, other than as a result of the failure of the Board to issue such Tax Credit upon
receipt by the Board of the necessary information, (v) tiny loss resulting from any environmental
violation at the Project, and (vi) any claim or action or proceeding with respect to the matters set forth in
subsections(i), (ii), (iii), (iv)and (v)above brought thereon.
Section 5.6. Further Assurances and Corrective Instruments. The Board, the Public
• Entity and the Nonprofit Entity from time to time will execute, acknowledge and deliver, or cause to be
executed, acknowledged and delivered, such further instruments as may reasonably be required for
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• correcting any inadequate or incorrect description of the Projeci and for carrying out the intention or
facilitating the performance of this Agreement.
Section 5.7. Litigation Notice. The Nonprofit Entity shall give the Board and/or the Public
Entity prompt notice of any action, suit or proceeding by it or against it at law or in equity, or before any
governmental instrumentality or agency, which, if adversely determined, would materially impair the
right of the Nonprofit Entity to carry on the business which is contemplated in connection with the
Project, or would materially and adversely affect its business, operations,properties, assets or condition.
Section 5.8. Affirmative Covenants of the Nonprofit Entity. 'file Nonprofit Entity
covenants and agrees that so long as this Agreement is in effect,the Nonprofit Entity will strictly comply
with each of the following requirements:
(a) All Contributions shall be expended strictly in accordance with the Project
Budget. The Project Budget may be amended from time to time by the Nonprofit Entity;
provided, however, that changes to the Project Budget which are Material will be made only with
the written consent of the Board and the Public Entity, such consent not to be unreasonably
withheld. The Nonprofit Entity will notify the Board and the Public Entity at least quarterly of
any non-Material changes to the Project Budget.
(b) Changes to the Project which are Material may only be made with the written
approval of the Board's and the Public Emily's Economic Development Director or designee.
The Nonprofit Entity will notify the Board and the Public Entity at least quarterly of any non-
Material changes to the Project.
(c) The Nonprofit Entity shall not transfer, pledge, lease or permit any assignment
or lien to exist or in any other mmmcr dispose of the Nonprofit Entity's ownership interest in the
Project without the prior written consent of the Board and the Public Entity, such consents not to
be unreasonably withheld.
(d) If the Board Project Fund shall be insufficient to pay fully all Project Costs and
to complete the Project lice free, the Nonprofit Entity shall complete the Project at its sole cost
and shall pay, in cash, the full amount of any such deficiency by making payments thereof
directly to the contractors and to the suppliers of materials and services as the same shall become
due.
(c) The Nonprofit Entity shall maintain in effect a designation from the Internal
Revenue Service ns an organization described in Section 501(c)(3) of the Internal Revenue Code
of 1986, as amended(the"Code").
(Q The Nonprofit Entity is not presently and shall not engage in any "unrelated
trade or business," as defined in Section 513 of the Code that would adversely nffect its status as
an organization described in Section 501(c)(3)of the Code.
Section 5.9. Negative Covenant of the Public Entity. The Public Entity covenants and
agrees that so long as this Agreement is in effect, the Public Entity will, to the extent within its control,
refrain from taking any action that would cause the Nonprofit Entity to violate any of the affirmative
• covenants contained in this Agreement. The Public Entity shall promptly notify the Board in writing if it
receives actual notice of oily default by the Nonprofit Entity or it under this Agreement.
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ARTICLE Vi
MiSCELLANEOUS PROVISIONS
Section 6.1. Default. In the event the Nonprofit Entity shall fail to perform any material
covenant, condition or other provision of this Agreement and such failure shall continue for 30 days after
written notice thereof by the Board, the Board shall be entitled to retain all Contributions in ilia Board
Project Account; provided, however, if such failure is correctable but is such that it cannot be corrected
within such 30-day period, such failure shall not constitute a failure within Ilia meaning of this Section
6.1 if the Nonprofit Entity is diligently pursuing such corrective action and such failure is corrected
within 120 days. Amounts retained by the Board pursuant to this Section shall be applied in accordance
with Section 4.6 hereof.
Section 6.2. Notices. Any notice, request, complaint, demand or other communication
required or desired to be given or filed under this Agreement shall be in writing and shall be deemed
duly given or tiled if the same shall be delivered by courier or overnight delivery service or duly mailed
by first-class mail,postage prepaid, addressed as follows:
(a) To the Board:
Missouri Development Finance Board
Governor Office Building
200 Madison Sic 1000
• Jefferson City, Missouri 65102
Attention: Assistant Director&Controller
Telephone No. (573)751-8479
Fax No. (573)526-4418
(b) To the Public Entity:
City of Jefferson,Missouri
Attn: City Administrator
320 E McCarty
Jefferson City, Missouri 65101
Telephone No. (573)634-6305
Pox No. (573) 634-6329
(e) To the Nonprofit Entity:
Missouri Farm Bureau Foundation for Agriculture
Attention: President
701 South Country Club Dr
Jefferson City, Missouri 65109
Telephone No. (573) 893-1404
Fax No. (573) 893-1560
• The Board, the Public Entity and Ibe Nonprofit Entity may from time to time designate, by
notice given hereunder to the others of such parties, such other address to which subsequent notices,
certificates or other communications shall be scat.
_11_
• Section 6.3. Severability. if any provision of this Agreement shall be held or deemed to be
invalid, inoperative or unenforceable as applied in any particular case in any jurisdiction or jurisdictions
or in all jurisdictions, or in all eases because it conflicts with any other provision or provisions hereof or
any constitution or statute or rule of public policy, or for any other reason, such circumstances shall not
have the effect of rendering the provision in question inoperative or unenforceable in any other case or
circumstance, or of rendering any other provision or provisions herein contained invalid, inoperative or
unenforceable to any extent whatsoever.
Section 6.4. Execution in Counterparts. This Agreement may be executed in several
counterparts, each of which shall be an original and all of which shall constitute but one and the same
instrument.
Section 6.5. Governing Law. This Agreement shall be governed exclusively by and be
construed in accordance with the applicable laws of the State of Missouri.
Section 6.6 Electronic Storage of Documents. The Board, the Public Entity and the
Nonprofit Entity agrees that the transaction described herein may be conducted and related documents
may be stored by electronic means.
• [Thc remainderofthis page intentionally left blank.]
•
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• IN WITNESS WHEREOF, each of the parties hereto has caused this Agreement to be signed in
its respective name and behalf and its official seal to be hereunto affixed and attested by its duly
authorized officers,all as of the date first above written.
MISSOURI DEVELOPMENT FINANCE BOARD
By:
Robert V.Miserez,Exeditive Director
CITY OF JEFFERSON,MISSOURI
l
By:
NJ e•
: Mayor
• MISSOURI FARM BUREAU FOUNDATION FOR
AGRICULTURE
By: (2-4
Name:Charles Kruse
'rifle: President
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• EXHIBIT A
DESCRIPTION Of THE PROJECT
The Project consists of conversion of approximalely 18,000 square feet of existing and unused
warehouse space in a 30,000 square foot facility on u 19.2 acre site. The space would house an
agricultural museum. The museum will serve both as education and tourism facility for the general
public,with a special education emphasis on grades K-12.
•
•
A-1
• rxunslT IS
APPLICATION TO THE BOARD
•
•
B-1
• EXIIIIIIT C
FORM OF DISBURSEMENT REQUEST
Disbursement Request No._
To: Missouri Development Finance Board
Governor Office Building
200 Madison Ste 1000
Jefferson City, Missouri 65102
Attn: Finance Officer
Fax No. (314)526-4418
Re: Missouri Farm Bureau Agriculture Museum - Disbursement Request from the
Board Project Account
You are hereby requested pursuant to Section 4.3 of the Tax Credit Agreement dated as of the
_ day of January, 2006 (tile "Agreement'), to issue a check to the City of Jefferson, Missouri (the
"Public Entity") for endorsement without recourse to Missouri Farm Bureau Foundation (the"Nonprofit
Entity") to permit it to issue checks to the following named payee to provide for the payment or
reimbursement of the following Project Costs(as defined in the Agreement):
• Description
Payee/AddresslTax ID No. Amount of Project Costs
The undersigned hereby stales and certifies that:
1. Each item listed above is a proper Project Cost (as defined in the Agreement).
Attached hereto are invoices, statements, bills or other documents evidencing the fact that such payment
is due.
2. These Project Costs have been incurred and are presently due and payable or
have been paid by the Nonprofit Entity in connection with the Project.
3. No item listed above has previously been included in any other Disbursement
Request previously approved by the Board under the provisions of the Agreement.
• 4. All necessary permits and approvals required for the portion of the work on the
Project for which this withdrawal is to be made have been issued and are in full force and effect.
C-1
S. [No material change in the Project Budget is necessary as a result of the payment
of this request.] [As a result of this request we are hereby requesting that the Board approve a
modification of the Project Budget as follows:
Dated this_day of 20_
MISSOURI FARM BUREAU FOUNDATION FOR
AGRICULTURE
By:
Authorized Representative
Approved for Payment on _,20_
CITY OF JEFFERSON,MISSOURI
By:
Title:
• Approved for Payment on _,20_:
MISSOURI DEVELOPMENT FINANCE.BOARD
By:
Assistant Director S Controller
•
C-2
EXIIBIT D
REQUIREMENTS FOR ALL
DISBURSEMENTS FROM THE BOARD PROJECT ACCOUNT
"Project" means the project described on Exhibit A lmreto (the "Project"), all as more fully
described in the application for assistance submitted to (lie Board (all as attached hereto as Exhibit B,
collectively,the"Project Application').
Only actual hard costs (bricks and mortar) of constructing and equipping the Project are eligible
for reimbursement with the proceeds of contributions relating to Tax Credits. Eligible costs include
costs for material and labor, architectural and engineering costs, costs for appraisals, title insurance,
environmental assessments. Reimbursable costs must be properly documented by acceptable accounting
practices.
All requests for disbursements must be executed by the duly authorized representative of the
public entity prior to submission to the Board.
•
•
D-1