RESOLUTION NO, R-07-44 OHIO CULTURAL FACILITIES COMMISSION NOVEMBER 29, 2007 A RESOLUTION CONFIRMING THAT THERE IS A NEED FOR THE PROJECT RELATED TO THE NATIONAL UNDERGROUND RAILROAD FREEDOM CENTER AND THAT THERE IS SUBSTANTIAL REGIONAL SUPPORT FOR THE PROJECT, CONFIRMING THE CONSTRUCTION ADMINISTRATOR, CONFIRMING PROVISION OF GENERAL BUILDING SERVICES, CONFIRMING THE APPROVAL OF ‘THE PROJECT AND AUTHORIZING THE EXPENDITURE OF ADDITIONAL FUNDS, AUTHORIZING A COOPERATIVE USE AGREEMENT, AUTHORIZING THE TERMINATION OF THE MANAGEMENT AGREEMENT, AUTHORIZING AN AMENDMENT TO. ‘THE LEASE AND EXECUTION OF A CONSTRUCTION ADMINISTRATION AND FUNDING AGREEMENT, AND THE TAKING OF CERTAIN OTHER ACTIONS WHEREAS, the Ohio General Assembly (the “General Assembly’) established the Ohio Cultural Facilities Commission (the "Commission’) under Chapter 3383 of the Ohio Revised Code (the “Act’) to engage in and provide for the development, performance, and presentation or making available of culture to the public, including the provision, ‘operation and management of Ohio cultural facilities, as defined in the Act; WHEREAS, pursuant to Section 3383.07(0) of the Act, the General Assembly required that state funds, including the proceeds of state bonds, not be spent on the construction of any Ohio cultural facility unti (i) the Commission has determined that there is a need for the cultural project and the Ohio cultural facility related to the project in the region of, the state for which the Ohio cultural facility is proposed to be located, and (ii) provision has been made, by agreement or otherwise, satisfactory to the Commission, as an indication of substantial regional support for that Ohio cultural facility, for local contributions amounting to not less than fifty percent of the total state funding for the cultural project; WHEREAS, pursuant to Section 3383,04(G) of the Act, the General Assembly authorized the Commission to lease, sublease, cooperate in the use of, or otherwise ‘make available to a cultural organization, including governmental entities, Ohio cultural facilities; WHEREAS, pursuant fo Section 3383.04(M) of the Act, the Commission may enter into contracts with cultural organizations, including governmental entities, for the management of Ohio cultural facilities; WHEREAS, the Ohio Building Authority issued State of Ohio Arts Facilities Bonds, dated February 15, 2003 (the “2003 Bonds" and, together with any other bonds issued for the purpose of paying the costs of Ohio cultural facilities, the “State Bonds’) to finance the State's portion of the cost of construction of the Center; WHEREAS, on August 31, 2005, the Treasurer of the State of Ohio (the "Treasurer") issued the State of Ohio Cultural and Sports Capital Facilities Bonds, Series 2005A andon December 14, 2006 issued the State of Ohio Cultural and Sports Facilities Bonds, Series 2006A for the purpose of paying the costs to finance the state's portion of the cost of construction of Ohio cultural facilities, including the state's portion of the cost of construction of the Project (the "Project’); WHEREAS, the General Assembly previously appropriated an aggregate amount of $500,000 in General Revenue Funds and $12,150,000 in bond funds for the purpose of constructing the Project; WHEREAS, pursuant to prior Commission resolutions, the Commission determined that there was a need for the Project and that regional support existed for the Project, approved that the National Underground Railroad Freedom Center, Inc. (the "Project ‘Sponsor’) be permitted to act as construction administrator on the Project and approved expenditure of funds, subject to certain conditions; WHEREAS, the conditions of prior Commission resolutions were met to the satisfaction of the Commission, and the total of $12,650,000 has been expended on the appropriated funds for the Project; WHEREAS, the Project Sponsor and the Commission are patties to a lease agreement entered into on March 25, 2003 and amended from time to time (the "Lease Agreement”), a Management Agreement dated March 25, 2003 and amended from time to time (the "Management Agreement’), and an Arts Facility Construction Administration and Funding Agreement dated March 26, 2003, which expired on August 24, 2005 upon the final reimbursement for appropriated monies from the Commission (the "CAF Agreement’); WHEREAS, the 126" General Assembly in Am. Sub, H.B. 699 appropriated additional bond funds in the amount of $2,000,000 in line item CAP-919 (later renamed ALI C371H2) to the Project sponsor for the Project; WHEREAS, in accordance with the State of Ohio Cultural and Sports Facilities Bonds sued by the Treasurer of State, the Project Sponsor is required to enter into a Cooperative Use Agreement for the Project which will terminate the Management ‘Agreement and the Project Sponsor is further required to enter into a new CAF ‘Agreement to receive the newly appropriated bond funds; WHEREAS, the Commission requested the Project Sponsor prepare a needs ‘assessment statement and related financial plan in a Project Registration form and a Project Detail form (together with all attachments, schedules and additional information amended thereto, the "Project Application Form") for the purpose of confirming the need for the Project, pursuant to Section 3383.07(D)(1) of the Act; WHEREAS, earnings from future investment income are an integral part of the project in as much as future earnings are included in the Sponsor's representation of full funding, in its Project Application Form; WHEREAS, the Commission staff recommends the continued use of earings from future investment income as an acceptable funding source in determining full funding for the Project; only if the Project Sponsor extends the term of the Commission leasehold ‘S\PROJECT MANAGEMENTI.Cultucl Projecte\National Underground Raload Freedom CenterAssessments & Does for PresentationiResoluton PreplR-07-48 NURFO 2007-11-28. Page 2 of 6interest in the facility, in an amount and for a time period to be concurrent with the term of the additional bonds to be used for the payment of the Project costs; WHEREAS, the Commission staff has reviewed the Project Application Form submitted by the Project Sponsor and certified by the Project Sponsor as of the date of this, resolution and recommends confirmation of the approval of the Project and authorization of the expenditure of the additional funds, when coupled with an extension of the State's leasehold interest granted in the Lease Agreement; WHEREAS; the Project Sponsor has agreed to extend the State’s leasehold interest by executing an amendment to the Lease Agreement; and WHEREAS, the Commission has reviewed the Project Application Form and Commission staff recommendation and has also heard and considered oral presentations made at the Commission meeting held on the date of this resolution. NOW, THEREFORE, BE IT RESOLVED: Section 1. Confirmation of Need. In accordance with Section 3383.07(D)(1) of the Act, the Commission hereby confirms that there is a need for the Project in the County of Hamilton, Ohio, being the region of the state where the Project is located Section 2. Confirmation of Substantial Regional Support. In acoordance with Section '3383.07(D)(2) of the Act, the Commission hereby confirms that, as an indication of substantial regional support for the Project, provision has been made to its satisfaction that local contributions will amount to not less than fifty percent of the total state funding for the project and that such anticipated contributions, together with the state funds, will result in full funding for the Project. Section 3. Confirmation of the Construction Administrator. The Commission hereby accepts the recommendation of the Executive Director and independently confirms that the Project Sponsor be permitted to act as construction administrator on the Project in accordance with Section 3383.07(A) of the Act. Section 4. Confirmation of the Provision of General Building Services. The Commission hereby confirms that the Project Sponsor shall provide general building services, in accordance with Section 3383.07(C) of the Act. Section §. Confirming the Approval of the Project and Authorization of the Expenditure of Additional Funds. The Commission hereby confirms the approved Project and authorizes the expenditure of additional funds in the amount of $2,000,000, subject to the following conditions: i, The Project Sponsor provides the Commission with evidence of its real property interest in the site (for a period of at least fifteen [15] years) satisfactory to the Executive Director of the Commission in her sole discretion; ji, the Project Sponsor provides the Commission with evidence that the site is free of any mortgages, liens or other encumbrances unacceptable to the Executive Director of the ‘S\PROJECT MANAGEMENT (Cultural Projects\National Underground Raltoad Freedom CenterAseessments & ‘Docs for Presentation Resolutan Prep\R-07-44 NURFC 2007-17-29.d00 Page 3 of 6vi vii vil xi Commission in her sole discretion and that the existing liens will be released prior to the signing of the Second Amendment to the Base Lease and Cooperative Use Agreement; the Project Sponsor provides the Commission with an IRS determination letter providing evidence satisfactory to the Commission that itis a 501 (c)(3) corporation in good standing; the Project Sponsor provides the Commission with evidence satisfactory to the Commission that itis in good standing with the Attorney General's Office, Charitable Law Section; the Project Sponsor provides the Commission with evidence satisfactory to the Commission that itis in good standing with the Secretary of State’s Office; the Project Sponsor provides the Commission with copies of the construction bids and consultants contracts; the Project is fully funded, as described below, and as determined in the sole discretion of the Executive Director of the Commissio the Project Sponsor and the Commission execute an amendment to the Lease Agreement, a Cooperative Use ‘Agreement and a Construction Administration And Funding ‘Agreement, and any other required documents on or before the Commission's second quarter 2008 meeting; the Project Sponsor fulfils its obligations under Article XVII Section 1 of the CUA, as determined by the Executive Director of the Commission in her sole discretion; Bank One NA. agrees to subordinate their Open-end Mortgage, Security Agreement and Fixture Filing (‘the Mortgage’), dated April 1, 2003 and recorded in Official Record Volume 9237, Page 4717 in the Recorder's Office, to the Second Amendment to the Base Lease, in favor of the Commission and that such lease amendment will not create a default by the Project Sponsor under their agreement with Bank One NA.; the Project Sponsor has provided the Commission with a copy of its resolution or ordinance authorizing its execution of an amendment to the Lease Agreement, a Cooperative Use ‘Agreement, a Construction and Administration Funding ‘Agreement, the termination of the Management Agreement, and any other required documents; the Attorney General has reviewed and approved the documents, as appropriate; SS\PROJECT MANAGEMENT)1.Cuttural Projets Natonal Underground Ralvoad Freedom CentenAssessmenis & Docs for PresertatioriResolution PrepiR-07-44 NURFC 2007-11-28:d0c, Page 4 of 6xiii. the Controlling Board or the Director of the Office of Budget and Management, as required by law, approves and certifies the release and availability of funds; xiv, _ a search of the Auditor of State database established pursuant to Section 9.24 of the Ohio Revised Code concludes that the Project Sponsor has no unresolved findings for recovery; xv. and the Project Sponsor provides the Commission with a signed Declaration Regarding Material Assistance/Nonassistance to a Terrorist Organization (OMA) pursuant to Senate Bill 9 of the 126" General Assembly. For purposes of subsection (vil) of this Section 5, “fully funded” means that funds have been raised for the total costs of the Project including all hard costs, soft costs and start- up costs and, the operating endowment for the Project. As used herein, "raised" means receipt of written pledges from creditworthy entities, written funding commitments from governmental entities, written guarantees from creditworthy entities (in a form approved by the Ohio Attorney General's Office), cash receipts and future receipts of investment income or any combination of the foregoing. Section 6. Agreement and Execution of a Constru yreement. The Chairman or the Executive Director of this Commission be, and hereby is, authorized and directed to execute and deliver, or cause to be executed and delivered, an Amendment to the Lease Agreement, a Cooperative Use Agreement Addendum and a Construction Administration and Funding Agreement with the Project Sponsor, in the name and on behalf of the Commission, as the Chairman or Executive Director deems necessary or appropriate to carry out the intent of the foregoing resolution. The execution of such agreements by the Chairman or the Executive Director shall be conclusive evidence of the exercise of the discretionary authority conferred herein Section 7. Authorization of Execution of Other Documents, Taking Other Actions. The Chairman or the Executive Director of this Commission be, and hereby is, authorized and directed to execute and deliver, or cause to be executed and delivered, all such documents, agreements, instruments or certifications, or to do, or cause to be done, all such acts and things, in the name and on behalf of the Commission, as the Chairman or the Executive Director may deem necessary or appropriate to carry out the intent of the foregoing resolution. The taking of such action or the execution of any such agreements by the Chairman or the Executive Director shall be conclusive evidence of the exercise of the discretionary authority conferred herein. Section 8. Open Meeting. All formal actions of this Commission concerning and relating to the adoption of this resolution were taken and adopted in an open meeting of this Commission, and all deliberations of this Commission that resulted in those formal actions were in meetings open to the public, and in compliance with all legal requirements including Ohio Revised Code Section 121.22 ‘S\PROJECT MANAGEMENT| CufuralProjects\ational Underground Rairoad Freedom Center Assessments & Docs for PresentationiResoluon PrepiR-07-44 NURFC 2007-11-28.d0c, Page 5 of 6IN WITNESS WHEREOF, the undersigned hereby certifies that the foregoing Resolution was duly adopted at a meeting held on November 29,2007 by the members of the Ohio Cultural Facilities Commission. Ronald A. Pizzi, Chairprar SS\PROJECT MANAGEMENT). Cultural Projects\National Underground Raitoed Freedom Centerassessments & Docs for Presonatiorftesoluton ProplR-07-#4 NURFC 2007-11-20:d0c, Page 6 of 6