HomeMy WebLinkAboutS Grant - Co Ext - Golden Leaf Grant for Piedmont Value Added Shared Use Food & Agricultural Processing center 01-22-2009-4po~- ~ ~-~ 9
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The Golden LEAF Foundation
GRANTEE ACKNOWLEDGMENT AND AGREEMENT
1. Grantee: Orange County, NC
2. Project Title: Piedmont Value-Added Shared-Use Food and Agricultural Processing Center
3. Purpose of Grant: This Golden LEAF grant will help equip a regional value-added shared use food and
agricultural processing facility to serve central NC. A feasibility study indicates that the facility will serve
16,214 farms in a 75-mile radius and generate more than $800,000 in revenue for local farmers. Orange County
has dedicated a building in which to locate the center. Alamance, Chatham, and Durham Counties have also
indicated their intent to support the operation of the Center.
4. Amount of Grant: $250,000.00
5. Award Date: 12/4/2008 Start Date:
6. Special Terms and Conditions Applicable to Grant:
^ The term of the grant is 12 months.
^ Grantee agrees to submit a revised budget, timeline, and workplan for approval. The revised
documents should reflect any special conditions of the grant award.
^ Budget modifications must be submitted to Golden LEAF for approval prior to expending funds on
modified budget lines.
^ Release of grant funds is contingent on Grantee attendance at a Golden LEAF grants management
workshop or satisfactory consultation with staff to gain training in management of Golden LEAF
grants and reporting requirements.
^ Release of grant funds is contingent on Golden LEAF approval of management and operating plans,
including fee structures, for the Center.
^ Release of funds is contingent on Grantee demonstrating that it has secured sufficient funds to
complete the project.
^ If items purchased with Golden LEAF funds cease to be used for the purposes of this grant, Grantee
agrees that the items will be sold and proceeds of the sale returned to Golden LEAF, unless
otherwise approved by Golden LEAF. Grantee will notify Golden LEAF prior to holding any such
sale.
^ Grantee agrees to provide economic impact data regarding the program annually FOR FNE
YEARS beyond the grant period, and to provide that data to Golden LEAF upon request.
7. The Grantee confirms that the Internal Revenue Service has determined that the Grantee is now an organization
described in Section 501(c) (3) of the Internal Revenue Code of 1986, as amended, or is a federal, state or local
governmental unit. Grantee agrees to notify the Foundation promptly if the Grantee's tax-exempt status is
revoked or modified in any way. It agrees that it will use the funds from this grant only for charitable,
educational, or scientific purposes within the meaning of Section 501(c)(3) of the Code, and that it will not use
the funds from this grant in any .way that would result in or give rise to private inurement or private benefit. The
Grantee agrees that no funds from this grant will be used to carry on propaganda or otherwise to attempt to
influence legislation, to influence the outcome of any public election, or to carry on directly or indirectly any
voter registration drive. The Grantee agrees that it will not use any of these grant funds to make any grant that
does not comply with the requirements of Section 4945(d)(3) or (4) of the Code or to undertake any activity for
any purpose other than one specified in Section 170(c)(2)(B) of the Code. Unless otherwise agreed by the
Foundation, no portion of the Grantee's rights or obligations under this Agreement may be transferred or
assigned to any other entity.
8. The Grantee accepts and will retain full control of the disposition of funds awarded to the Grantee by the
Foundation under this grant, and accepts and will retain full responsibility for compliance with the terms and
conditions of the grant. Grant funds shall be utilized exclusively for the purposes set forth above, and if any
portion of the grant is not used for these purposes, the Grantee agrees to repay such portion to the Foundation.
If the Grantee breaches any of the covenants or agreements contained in this Agreement, or any of the
representations and warranties are untrue as to a material fact, the Grantee agrees to repay to the Foundation the
full amount of this grant. Any condition, purpose, term or provision in the Foundation's resolution approving
funding or in this Agreement shall take precedence over any conflicting provision in the Grantee's application.
9. The Grantee is in material compliance with all federal, state, county, and local laws, regulations, and orders that
are applicable to the Grantee, and the Grantee has timely filed with the proper governmental authorities all
statements and reports required by the laws, regulations, and orders to which the Grantee is subject. There is no
litigation, claim, action, suit, proceeding or governmental investigation pending against the Grantee, and there is
no pending or (to the Grantee's knowledge) threatened litigation, claim, action, suit, proceeding or governmental
investigation against the Grantee that could reasonably be expected to have a material adverse effect upon the
Grantee's ability to carry out this grant in accordance with its terms. The Grantee has timely paid all judgments,
claims, and federal, state, and local taxes payable by the Grantee the non-payment of which might result in a lien
on any of the Grantee's assets or might otherwise adversely affect the Grantee's ability to carry out this grant in
accordance with its terms.
10. The Grantee agrees to immediately notify the Foundation of anything that may materially affect the Grantee's
ability to perform the project funded. If the Grantee proposes to modify the budget, the objectives, or any other
feature of the project funded, it shall not expend any funds from this grant for such purposes unless the
Foundation has approved such proposed modifications in writing. Moreover, no further payments shall be made
to the Grantee in connection with the project funded unless and until the Foundation has approved such
proposed modifications in writing.
11. The Grantee acknowledges that grant funds shall be paid to the Grantee only when those sums are needed to
carry out the project funded and the Grantee has submitted a written request for payment. A sum equal to twenty
percent (20%) of the total amount of the grant will be retained by the Foundation until the Grantee completes its
obligations under this grant, including its submission of a final report on the project funded. Each request for
payment shall be in writing and shall certify that the Grantee has performed in accordance with the terms and
provisions of its Grantee Acknowledgment and Agreement, and that such Grantee is entitled under the terms of
such Agreement to receive the amount so requested. Each request should be made to Mr. Dan Gerlach,
President, The Golden LEAF Foundation, 301 N. Winstead Avenue, Rocky Mount, NC 27804. Payment should
not be requested until the Grantee has need for actual expenditures of the funds. Grantee should request
payment at least thirty (30) days prior to its desired payment date. All requirements under this Grantee
Acknowledgment and Agreement must be met before payment will be made. If the grant is conditional or
contingent, all conditions and contingencies must be met before payment will be made.
12. The Grantee agrees to submit an Interim Report to the Foundation annually, to be received by the Foundation by
June 30. The Grantee agrees to submit a Final Report for receipt by the Foundation within sixty (60) days after
the completion of all obligations for the project funded. The Grantee will furnish additional or further reports if
so requested by the Foundation on forms prescribed by the Foundation. Failure to submit a required report by
the scheduled submission date will result in the withholding of any subsequent grant payment until the
Foundation receives the delinquent report.
13. The Grantee agrees to maintain full, accurate and verifiable financial records, supporting documents, and all
other pertinent data for the project funded in such a manner so as to identify and document clearly the
expenditure of Foundation funds provided, separate from accounts for other awards, monetary contributions, or
other revenue sources for the project funded. The Grantee agrees to retain all financial records, supporting
documents, and all other pertinent records related to the project funded for a period of five (5) years from the
end of the grant funding period. In the event such records are audited, all project records shall be retained
beyond such five-year period until all audit findings have been resolved. The Grantee shall make available to
the Foundation, or the Foundation's designated representative, all of the Grantee's records that relate to the
project funded, and shall allow the Foundation or the Foundation's representative to audit, examine and copy
any data, documents, proceedings, records and notes of activity relating to the project. Access to these records
shall be allowed upon request at any time during normal business hours and as often as the Foundation or its
representative may deem necessary.
14. The North Carolina State Auditor considers the funds from this grant to be "State funds" as that term is used in
Section 143C-6-23, North Carolina General Statutes, and the accompanying regulations. The Grantee agrees to
comply with audit and reporting requirements imposed by the North Carolina State Auditor on recipients of
"State funds."
15. In consideration of its receipt of funds granted by the Foundation, the Grantee agrees that during the course of
the project funded by the grant, the Grantee, and any recipient of grant funds, will promptly disclose to the
Foundation any improvements, inventions, developments, discoveries, innovations, systems, techniques, ideas,
processes, programs, and other things, whether patentable or unpatentable, that result from any work performed
by or for the Grantee in connection with the project funded, or by individuals whose work is funded by the grant
(the "New Developments"). If Grantee notifies the Foundation of any Invention Disclosure Reports it receives
from Grantee employees that report making inventions under this Agreement, then Grantee will be deemed to
have satisfied the disclosure requirement in the preceding sentence.
The Grantee agrees that it, and any recipient of grant funds, shall take all reasonably appropriate actions to
assure that the New Developments shall be and remain the sole and exclusive property of the Grantee. In the
event that the interests of the public would be served by commercialization of the New Developments, the
Grantee agrees to use its best reasonable efforts to pursue the commercialization of any such New Developments
in a manner that will serve the interests of the public, including but not limited to the transfer, assignment or
licensing of such New Developments; provided, however, that the Grantee, and any recipient of grant funds,
shall not transfer, assign or license such New Developments in part or in whole without first having obtained the
written consent of the Foundation.
Any revenue generated as a result of transferring, assigning, or licensing New Developments will be managed
by the Grantee in accordance with its published patent, copyright and technology transfer procedures, if any, and
in the absence of such procedures such revenue will be managed by the Grantee in accordance with procedures
approved by the Foundation. Such procedures typically will prioritize the distribution of revenues to insure that
the Grantee first honors its obligation to its inventors and then to cover its own out-of-pocket expenses as
necessary to protect its intellectual property.
16. The Grantee and Foundation further agree that should there be any revenue generated greater than that necessary
to meet the obligations of the preceding paragraph ("Net Revenue"), the Net Revenue shall be managed by the
Grantee as follows:
a) 15% of the Net Revenue will be retained by the Grantee as a fee for the management and distribution of
funds as required under this Agreement.
b) 30% of the remaining Net Revenue will be paid to the Foundation.
c) 70% of the remaining Net Revenue will be retained by the Grantee and used in accordance with the
procedures referenced in Section 15, above.
The Grantee's obligations pursuant to this Section will continue beyond the expiration of the funding period.
17. The Grantee acknowledges and agrees that the Grantee is an entity independent from the Foundation, and is not
an agent of the Foundation, and is not authorized to bind the Foundation to any agreement of payment for goods
or services. The Grantee is responsible for payment of all its expenses, including rent, office expenses and all
forms of compensation to employees. It shall provide workers compensation insurance to the extent required for
its operations and shall accept full responsibility for payments of unemployment compensation, social security,
income taxes and any other charges, taxes or payroll deductions required by law in connection with its
operations, for itself and its employees. All expenses incurred by the Grantee are the sole responsibility of the
Grantee, and the Foundation shall not be liable for the payment of any obligations incurred in the performance
of the project funded.
18. The Grantee acknowledges receipt of the following statement of the Foundation's policy regarding termination
and rescission of grants. The Grantee acknowledges that the Foundation may, from time to time, amend its
policy regarding termination and rescission of grants, and the Grantee acknowledges -that the Grantee will be
subject to the policy as so amended.
Rescission and Termination of Grants. Rescission of a grant revokes the grant award. When funds have been
disbursed to a Grantee by the Foundation and a grant is rescinded, the Grantee may be liable for repayment to
the Foundation of any and all grant funds received by the Grantee under the grant. Termination of a grant ends
the grant on agoing-forward basis, and the Grantee is liable for repayment to the Foundation only of that portion
of the grant funds that has been disbursed to but not expended by the Grantee in accordance with the terms of
the grant.
A grant may be rescinded or terminated at any time, at the discretion of the Foundation, for reasons
including the following:
a. The Grantee has not signed and delivered to the Foundation the Grantee Acknowledgment and
Agreement within four (4) months of the date it was sent to the Grantee.
b. The Grantee has failed to complete the project within the time established by the Grantee
Acknowledgment and Agreement or any extensions thereof.
c. The Grantee's tax-exempt status has been modified or revoked.
d. The Grantee is unable, or has failed or refused, to comply with a material term or condition of the grant.
e. The Grantee has experienced a change in circumstances that would have a material adverse effect upon
the Grantee's ability to accomplish fully the purposes of the grant (e.g., loss of collateral funding, loss
of key personnel, etc.).
f. The Grantee has failed or refused to submit a report, statement, accounting or return required under the
Grantee Acknowledgment and Agreement or by applicable law.
g. The Grantee has materially modified its budget for the project, and such material modification has not
been approved by the Foundation.
h. The Grantee commits a material violation of the Internal Revenue Code, or uses funds for some purpose
not permitted by the Internal Revenue Code or for some purpose not contemplated by the grant.
i. The Grantee breaches any of the covenants or agreements contained in the Grantee Acknowledgment
and Agreement, or any of the representations and warranties made by the Grantee in the Grantee
Acknowledgment and Agreement is untrue as to a material fact.
j. The Grantee requests that the grant be rescinded or terminated.
It is anticipated that a grant will be rescinded if one of the reasons set forth above exists and no grant funds
have been disbursed. Where grant funds have been disbursed, it is anticipated that a grant will be rescinded
in the case of the more serious violations (including, without limitation, use of Foundation funds for some
purpose not contemplated by the grant or in violation of the Internal Revenue Code, or upon. other
affirmative misconduct of the Grantee), and that termination of a grant will take place in the case of the less
serious instances of noncompliance.
4
If the Board of Directors of the Foundation determines that a grant should be rescinded or terminated, the
Foundation will notify the Grantee of that decision. In the discretion of the Foundation, where the .Grantee
can correct the noncompliance, the Foundation may notify the Grantee that the grant is subject to rescission
or termination unless the Grantee, within thirty (30) days of the date upon which such notice is sent: (1)
remedies the situation in accordance with the instructions of the Foundation; (2) requests and receives an
extension of time within which to comply; or (3) requests and receives a modification of the terms of the grant,
and complies with the terms of the grant as modified. If the Foundation allows the Grantee the opportunity to
correct the noncompliance, no further funds shall be advanced pursuant to the grant until the
noncompliance is remedied.
19. The Grantee shall not discriminate by reason of age, race, ethnicity, religion, color, sex, national origin, or
handicap related to the activities of a project funded by the Foundation.
20. All publicity and printed materials regarding projects or activities supported in whole or in part by this grant
should contain the following language: "This project received support from The Golden LEAF Foundation."
The Golden LEAF logo (digital versions of which can be downloaded from the Golden LEAF website at
www.goldenleaf.org) is to be displayed in all of the Grantee's publicity and printed materials relating to this
grant.
21. The individual signing below certifies his or her authority to execute this Agreement on behalf of the Grantee.
By executing this Agreement, the Grantee, to induce the Foundation to make this grant, makes each of the
representations set forth hereinabove and certifies that each of such representations is true, accurate and
complete as of the date hereof.
IN WITNESS WHEREOF, the Grantee has executed this Agreement this day o , 2
Name of Grantee Organization (print): ~,
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Signature: f`,~ ~ 6~r~-... ~-~.-
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Name of Person Signing (print):~~ -~,(~
Title of Person Signing (print):
Date: 7 / ~ " I / ''2~ U
LAW OFFICES
COLEMAN, GLEDHILL, HARGRAVE & PEEK
A PROFESSIONAL CORPORATION
129 E. TRYON STREET' April 16, 2009
P. O. DRA~~ER 1529
HIILLLSBOROUGK, NORTH CAROLINA 27278
919-732.2(96
FAX 919-732.7997
www.cghp-law.com
Mr. Noah Ranells
Orange County Economic Development
Post Office Box 8181
Hillsborough, North Carolina 27819
FROM TI3E DESK OE
GT;OFFREY E. GLEDHILL
E-MAIL: g~edhill@cghp-law.rnm
RE: Golden Leaf Grant Agreement For The Piedmont Value-Added Shared~Use
Agricultural Processing Center
Dear Noah:
The Board of County Commissioners (the "Board") "ratified" the earlier submitted grant
application far the above referenced grant on August 19, 2008. The August 19, 2008 agenda
item abstract for this action did not contain a copy of the actual grant application that had been
submitted. The grant application did contain a certification signed by you stating that, " ...the
funds granted by Golden LEAF will be used exclusively for charitable, scientific, educational or
other tax-exempt public purposes, ..." The actual Grant Agreement, approved by the Board on
January 22, 2009, subject to County Attorney review, similarly contains the following: "It
agrees that it will use the funds from this grant only for charitable, educational, or scientific
purposes within the meaning of Section 501(c}(3} of the Code, and that it will not use the funds
from this grant in any way that would result in or give rise to private inurement or private
benefit." The grant funds in the amount of $250,000.00 are subject to revocation (and
repayment) under Section 18(h) of the Grant Agreement if the County " ...uses funds for some
purpose not permitted by the Internal Revenue Code ..." Further, there are several provisions of
the Grant Agreement that, in our view, needed clarification.
I have been working with Edward P. (Ted) Lord, Vice President of Programs/Staff
Attorney, Golden LEAF Foundation and with David Kyger, Smith Moore, outside counsel for
the Golden LEAF Foundation, on the Internal Revenue Code requirements of the Grant
Agreement and on points of clarification. That work has resulted in my receipt of the enclosed
two letters from Mr. Lord which together address our concerns.
I am not an income tax lawyer and do not have special expertise with the Internal
Revenue Code, including Section 501(c)(3) of the Code. No one in our firm has this expertise. I
am now persuaded, however, the Value-Added Shared-Use Agricultural Processing Center
project is eligible for the Golden LEAF Foundation grant. Therefore, in express reliance on the
information provided in the letters enclosed and on the conversations I had with Ted Lord and
outside counsel for the Golden LEAF Foundation, I recommend the County accept the Golden
LEAF Foundation Grant. The Grant Agreement can be executed by the appropriate County
officials and delivered after execution to the Golden LEAF Foundation. Please be sure this letter
and its enclosuxes are kept with the County's executed copy of the Grant Agreement.
Mr. Noah Ranells
Page 2
April 16, 2009
I appreciate the willingness of Mr. Lord and the Golden LEAF Foundation to work with
me on resolving our concerns. I also appreciate Smithson Mills making the initial contact with
Mr. Lord and facilitating Mr. Lord and I working through the Grant Agreement issues covered in
Mr. Lord's letters. I look forward to the success of the Piedmont Value-Added Shared-Use Food
and Agricultural Processing Center.
It is critical Orange County, as the "Organization... funded" by this Grant,
maintain adequate records and case histories to show the name and address of each
recipient of aid; the amount distributed to each; the purpose for which the aid was given;
the mariner in which the recipient was selected and the relationship, if any, between the
recipient and (1) members, officers, or trustees of the organization, {2) a grantor or
substantial contributor to the organization or a member of the family of either, and (3) a
corporation controlled by a grantor ar substantial contributor, in order that any or all
distributions made to individuals can be substantiated upon request by the Internal
Revenue Service
as required by the Internal Revenue Service Rev. Rul. 56-304. In that regard, the aid received by
users of the Center will not be distributions of funds. Rather it will be "aid" in the form of use of
the facility. It will also be Orange County's responsibility to ensure any non-profit organization
operating the Value-Added Shared-Use Food and Agricultural Processing Center maintains the
same records. This requirement should be a prominent requirement in the Charter and Bylaws of
the non-profit and in any contract/lease between the County and the non-profit related to the
operation and use of the Center.
Very truly yours,
COLEMAN, GLED)EI)CLL, HARGRAVE & PEEK, P.C.
GEG/lsg
Enclosures
xc: Valerie Foushee, Chair
Alice M. Gordon
Pam Hemminger
Barry Jacobs
Mike Nelson
Bernadette Pelissier
Steve Yuhasz
Donna Baker
Fletcher Barber, Jr.
Laura Blackmon
Brad Broadwell
F:\LisaVetterslLette<• to Noah Ranclls re VAPC.doc
Golden LEAF
FO€1NDAT10N
{LONG-TERM ECONOMIC ADVANCEMENT FOUNClATION}
jE.SSi& THOMAS BUNN April 15, 20x9 p~~ ~
CHA/RMANOFTLiEBOARD
Via E-Mail and US Mail
Geoffrey E. Gledhill
Coleman, Gledhill, Hargrave & Peek, P.C.
P.O. Drawer 1529
Hillsborough, NC 27278
Dear Geof:
This letter is to clarify the meaniiag of certain provisions of the Golden LEAF Grantee
Acknawiedgment and Agreement previously tendered to Orange County in connection with the
project "Piedmont Value-Added Shared-Use Food and. Agricultural Processing Center" (the
"Agreement"). The third sentence of Section 7 of the Agreement states that "[The Grantee]
agrees that it will use the funds from this grant only for charitable, educational, or scientific
purposes withixi the meaning of Section 501(c)(3) of the Code, and that it will not use the funds
from this grant in any way that woald result in or give rise to private inurement or private
benefit" (emphasis supplied). This is to confirm: that it is the intent of Golden LEAF that the
phrase "private inurement" shall be construed to have the meaning assigned to that phrase by the
Internal Revenue Service, and that the phrase "private benefit" shall be construed to have the
meaning assigned to the phrase "impermissible private beneft" by the Internal Revenue Service.
You may #'md it helpful to consider Rev. RuI.56-304, which states as follows:
Organizations privately established and funded as charitable founda#ions which are
organized and actively operated to carry on one or more of the purposes specified in
section SO1{c)(3) of the Internal Revenue Code of 1954, and which otherwise meet the
requirements for exemption from Federal income tax are not precluded froxxl making
distributions of their funds to individuals, provided such distributions are made on a true
charitable basis in furthezance of the puuposes for which they are organized. However,
organizations of this character which snake such distributions should maintain adequate
records and case histories to show the name and address of each recipient of aid; the
amount distributed to each; the purpose far which the aid was given; the manner in which
the recipient was selected and the relationship, if any, between the recipient and (1}
members, officers, or trustees of the organization, (2) a grantor or subs#antial contributor
to the organization or a member of the family of either, and (3) a corporation controlled
by a grantoz or substantial cozrtributor, in order that any or all distributions made to
individuals can be substantiated upon request by the Internal Revenue Service.
301 NORTH WINSTEAD AVENUE • ROCKY MOUNT, NC 27804 • {252) 442-7474 •(888) 684-8404 • FAX {252) 442-7404
www.goldenleaf.org • Email: lafoQgoldenleaforg
Geoffrey E. Gledhill
,Page 2
You may also find it helpful_to consider Txeas. Reg. §53.4958-4(a}(4)(v), which provides
in effect that an insider of a charitable organization will not be penalized for receiving "an
economic benefit pxovided to a person solely because the person is a member of a charitable
class that the applicable tax-exempt organization intends #o benefit as part of the accomplishment
of the organization's exempt purpose."
I hope that this letter resolves, any questions or concerns you may have about the Grantee
Acknowledgement and Agreement. If there are any other issues you would like to discuss,
please fee free to contact me.
Sincerely,
Edward P. Lord
Vice President of Programs/Staff Attorney
.~
Golden LEAF
FOUNDATION
{LANG-TERM ECONOMIC ADVANCEMENT FOt3NDATION)
J~S[E THOMAS B[iNN ~ DAN GERIJLQi
cHA~MAIV QF THE BOARD April 16, 2009 1vr
Via E-Mail and US Mail
Geoffrey E. Gledhill
Coleman, Gledhill, Hargrave & Peek, I'.C.
P.O. Drawer 1 S29
Hillsborough, NG 27278
Dear Genf,
This letter is intended to clarify our mutual understanding of Sections 14, 1 S, and
16 of the Golden LEAF Grantee Acknowledgement and Agreement for the grant to
Orange County for the project titled "Piedmont Value-Added Shared-Use Food and .
Agricultural Processing Center."
Section 14 of the agreement refers to certain State Auditor reporting obligations
set forth in N.C. Gen. Stat. 143C-6-23. That statute places reporting requirements on
"grantees." A "grantee" is defined as "a non-State entity that receives State funds as a
grant from a State agency. but does not include any non-State entity subj ect to the audit
and other reporting requirements of the Local Government Commission." Because
Orange County is one of the several counties ofNorth Carolina, we would not expect
Orange County~to be subject to those reporting requirements.
Sections 15 and 16 of the agreement address issues related to the development
and licensing of New Developments, as that term is defined in the agreement, and the
distribution of revenues generated from. such New Developments. In this grant, Golden
LEAF funds are to be used to equip the Processing Center. The purchase and installation
of equipment is not a New Development as that term is used in the agreement.
I hope this letter addresses your concerns. If you have any questions or need
additional clarification, please let me know. .
Sincerely,
~~ ~ ~~
Edward P. Lord
Vice President of Programs/Staff Attorney
301 NORTH WINSCEAD AVENUE • ROCKY MOUNT. NC 27804 • (2S2) 442-7474 • (888) b84-8404 • BAX (252) 44Z-7404
www.goldenlea£org • Emsil: info~goldenleaforg