RESOLUTION
A special meeting of the County of Sullivan Industrial Development Agency (“Agency”) was convened in public session on May 26, 2015, at 10:00 a.m., local time, at the Sullivan County Government Center, 100 North Street, Monticello, New York 12701.
The meeting was called to order by Chairman Ira Steingart, and, upon roll being called, the following members of the Agency were:
PRESENT ABSENT
Ira Steingart [ √ ] [ ]
Edward T. Sykes [ √ ] [ ]
Suzanne Loughlin [ ] [ √ ]
Charles Barbuti, Jr. [ √ ] [ ]
Sean Rieber [ √ ] [ ]
Howard Siegel [ √ ] [ ]
Carol Roig [ ] [ √ ]
Paul Guenther [ √ ] [ ]
The following persons were also present:
Steve White, Chief Executive Officer
Jennifer C.S. Brylinski, Agency Executive Director
Jennifer M. Flad, Agency Vice-President of Government Affairs and
Business Development
Walter F. Garigliano, Agency General Counsel
The following resolution was duly offered by Edward T. Sykes, and seconded by Howard Siegel, to wit:
Resolution No. 14 – 15
RESOLUTION OF THE AGENCY AUTHORIZING AMENDMENT OF THE CLOSING CONDITIONS LETTER RELATING TO THE MONTICELLO RACEWAY MANAGEMENT, INC. (“MRMI”) AND ITS AFFILIATE, MONTREIGN OPERATING COMPANY, LLC (“MONTREIGN” TOGETHER WITH MRMI COLLECTIVELY, THE “COMPANY”) PROJECT
WHEREAS, by Title 1 of Article 18-A of the General Municipal Law of the State of New York, as amended, and Chapter 560 of the Laws of 1970 of the State of New York, (hereinafter collectively called the “Act”), the Agency was created with the authority and power to promote, develop, encourage and assist in acquiring, constructing, reconstructing, improving, maintaining, equipping and furnishing industrial, manufacturing, warehousing, commercial, civic, research, and recreational facilities as authorized by the Act, and enter into straight lease transactions and provide other forms of financial assistance; and
WHEREAS, EPT Concord II, LLC (“EPT II”) for itself and on behalf of an entity or entities to be formed (collectively the, “EPT Entities”) submitted an application (“EPT Application”) to the Agency on February 12, 2013, requesting that the Agency undertake a certain project in one or more phases, (the “Master Development Project”) for the benefit of the EPT Entities consisting of: (i) the acquisition by the Agency of a leasehold interest or other interest in approximately seventy-one (71) parcels of land containing in the aggregate approximately 1,735 acres within the Town of Thompson, Sullivan County, New York (the “EPT Land”), (ii) the construction and equipping on the EPT Land of a master planned destination resort community to include (a) an 18-hole golf course with clubhouse and maintenance facilities, (b) a casino resort to include a casino, hotel, harness horse racetrack, grandstand/showroom, simulcast facility, banquet event center, restaurants and related facilities, (c) hotels, (d) a waterpark, (e) a recreational vehicle park, (f) an entertainment village with a cinema and supporting retail facilities, (g) a residential village containing a mix of unit types including condominiums, apartments, townhouses and detached single-family homes, a civic center and an active adult residential community, all or a portion of which will be connected, via a multi-use trail system, to open space (collectively, the “EPT Improvements”), and (iii) the acquisition in and around the EPT Land and the EPT Improvements of certain items of equipment and other tangible personal property (the “EPT Equipment”, and collectively with the EPT Land and the EPT Improvements, the “EPT Project”); and
WHEREAS, on October 21, 2013, the Agency and EPT II entered into a Master Development and Agent Agreement authorizing the EPT Entities to proceed with certain work limited in scope to soil erosion and sediment control, clearing and grubbing, earthwork, construction of new roads and improvements and enhancements to existing roads, constructed wetlands, landscaping, sanitary sewer, water, storm sewer, electric power, telephone service, cable tv, internet connectivity, demolition of existing structures, and all other related facility, equipment, improvements and infrastructure costs as set forth in the EPT Application together with a Lease to Agency, Leaseback to Company, Payment in Lieu of Tax Agreement and related documents (collectively the, “EPT Transaction Documents”); and
WHEREAS, on or about December 31, 2013, with the consent of the Agency, EPT II transferred a portion of the EPT Land to EPR Concord II, L.P.; and
WHEREAS, the EPT Entities and the Company have entered into an agreement whereby the Company will lease a portion of the EPT Land from the EPT Entities provided Montreign is selected by the New York State Gaming Facility Location Board to apply to the NYSGC (as hereinafter defined) for the award of a license to operate a Class III casino; and
WHEREAS, the Company for itself or on behalf of an entity or entities to be formed submitted an application (“Application”) to the Agency on February 6, 2013, requesting that the Agency undertake a certain project, in one or more phases (the “Project”), for the benefit of the Company consisting of: (i) the acquisition by the Agency of a leasehold interest or other interest in certain property located at Joyland Road and Thompsonville Road in the Town of Thompson (“Town”), Sullivan County, New York State and being more particularly identified as all or part of tax map numbers 23-1-11.3, 23-1-48, 23-1-52 (portion), 23-1-53 (portion), 23-1-54.1, 23-1-54.2 (portion), 23-1-54.3 (portion) and containing in the aggregate approximately 186 acres (“Land”), as more particularly described and shown on the table and figure annexed hereto as Exhibit A, (ii) the construction and equipping on the Land a “Casino Resort”, which will consist of, among other things, a casino, hotel, banquet event center, restaurants, support buildings and structured and surface parking and related facilities and amenities (collectively, the “Improvements”), and (iii) the acquisition in and around the Land and the Improvements of certain items of equipment and other tangible personal property (“Equipment,” and collectively with the Land and the Improvements, the “Facility” or “Project); and
WHEREAS, by resolution dated March 19, 2013 (“Inducement Resolution”), the Agency authorized the Company to act as its agent to proceed with the acquisition, construction and equipping of the Project; and
WHEREAS, on January 15, 2013, the Town of Thompson Town Board (“Town Board”) adopted the following (i) Resolution adopting SEQRA Findings in relation to the zoning petition and application for establishment of a Comprehensive Development Plan for the EPT Concord Resort (now known as “Adelaar”); (ii) Resolution adopting Local Law No. 1-2013 (introduced as Local Law 9-2012) Entitled: A Local Law Amending Various Provisions of the Town Code Section 250-27.2 – Planned Resort Development (“PRD”); and (iii) Resolution adopting a New Comprehensive Development Plan for Adelaar; and
WHEREAS, on April 10, 2013, the Town of Thompson Planning Board (“Planning Board”) adopted the following: (i) Resolution ratifying the Town Board’s SEQRA Findings Statement, (ii) Resolution granting Preliminary Site Plan Approval for Phase I of Adelaar; (iii) Resolution approving the Lot Improvement/Consolidation Plan, and (iv) Resolution granting Preliminary Subdivision Plat Approval with respect to the Land; and
WHEREAS, by Resolution adopted July 10, 2013, the Planning Board granted Final Site Development Plan Approval with Conditions for Phase I of Adelaar; and
WHEREAS, at the time of the Company’s Application, the Casino Resort development program was driven by legislation, including development incentives and gaming regulations, and market conditions present during the 2011-2013 timeframe as the project proceeded through local, state and federal permitting and approval process and environmental reviews; and
WHEREAS, following the November, 2013 referendum approved by New York voters to amend the New York State Constitution to allow the State to issue gaming facility licenses through a competitive Request for Applications (“RFA”) process pursuant to the Upstate New York Gaming and Economic Development Act of 2013 (the “Gaming Act”), the Company performed additional market feasibility analyses to evaluate certain program elements, specifically the casino, hotel and harness track and proposed a minor modification to the approved site plan for the casino hotel to allow more hotel rooms, additional parking, a slightly enlarged building footprint and reconfigured casino gaming floor to further enhance the casino and hotel prior to submission of the Company’s response to the RFA; and
WHEREAS, the application to the Planning Board for the minor site plan amendment included a completed Environmental Assessment Form, and Technical Memorandum, including a new Traffic Impact Study, and additional visual analysis providing an analysis of the visibility of the modified Casino and Hotel building from the same locations studied in the Environmental Impact Statement for the Project and additional regional vantage points, including potential nighttime lighting impacts; and
WHEREAS, on June 3, 2014, the Town Board, as SEQRA Lead Agency, found that there are no new potential significant adverse environmental impacts associated with the minor site plan amendment that have not previously been identified, analyzed and mitigated to the maximum extent practicable under SEQRA in the DEIS and FEIS and that no supplement environmental review was warranted or required and issued a Negative Declaration of Environmental Significance for the minor site plan amendment. The Planning Board approved the minor site plan amendment on June 11, 2014; and
WHEREAS, on June 30, 2014, based on the new competitive environment and the market analyses, the Company submitted a response to the RFA that included a development program without the harness racetrack element, which carries with it the added benefit of reducing the overall impacts associated with the Project while continuing to transform the former Concord Resort into the most comprehensive destination gaming resort in the Northeast, and attract a significant number of visitors from outside the economic development region as established by Section 230 of the State Economic Development Law, in which the Project is located; and
WHEREAS, on August 13, 2014, the Planning Board adopted a Resolution granting Final Subdivision Approval with respect to the Land; and
WHEREAS, at full-build of the Project in accordance with the Town approved Comprehensive Development Plan and the duly enacted PRD, the Company proposes to make a minimum total capital investment, not including the license fee, of approximately $450,000,000 if there is no license awarded for a Gaming Facility located in Dutchess or Orange Counties (“Project A”); if a license is awarded for a Gaming Facility located in Dutchess or Northern Orange County, the Company’s total capital investment, not including the license fee, will be approximately $275,000,000 (“Project B”); and if a license is awarded for a Gaming Facility located in Southern Orange County, the Company’s total capital investment, not including the license fee, will be approximately $170,000,000 (“Project C”); and
WHEREAS, the Company has agreed with the Agency, on behalf of the Agency and as the Agency’s agent, effective when and if the Company shall have been selected by the New York State Gaming Facility Location Board to apply to the New York State Gaming Commission (“NYSGC”) for the award of a license (the “Gaming License”) for a destination gaming resort to be issued by the NYSGC pursuant to The Upstate New York Gaming Economic Development Act of 2013 and such Gaming License shall have been awarded to the Company, to acquire, construct, install and equip the Facility in accordance with the plans and specifications presented to the Agency; and
WHEREAS, in order to induce the Company to develop the Facility, the Agency is willing to take a sub-leasehold interest in the Facility pursuant to that certain Lease to Agency of even date herewith (“Lease Agreement”), and sublease the subleasehold interest in the Facility back to the Company pursuant to the terms and conditions of that certain Leaseback Agreement of even date herewith (“Leaseback Agreement”); and
WHEREAS, it is contemplated that the Agency will (i) designate the Company as its agent for the purpose of acquiring, constructing and equipping the Project pursuant to an agent agreement (the “Agent Agreement”), (ii) negotiate and enter into a lease agreement or sublease agreement (the “Lease Agreement”), leaseback agreement or sub-leaseback agreement (the “Leaseback Agreement”) and payment-in-lieu-of-tax agreement (the “PILOT Agreement”) with the Company, (iii) take title to or a leasehold interest in the Land, the Improvements, Equipment and personal property constituting the Project (once the Lease Agreement, Leaseback Agreement and PILOT Agreement have been negotiated), and (iv) provide financial assistance (the “Financial Assistance”) to the Company in the form of: (1) an exemption from all New York State and local sales and use taxes with respect to the qualifying personal property included in or incorporated into the Facility or used in the acquisition, construction, renovation or equipping of the Facility and all personal property related thereto, (2) the grant of one or more mortgage liens on the Agency’s interest in the Facility (the “Mortgages”) to secure any indebtedness incurred by or for the benefit of the Company in connection with the Project, which Mortgages would be exempt from all mortgage recording taxes imposed in New York State, and (3) a partial (or full) real property tax abatement structured under the PILOT Agreement, by and between the Company and the Agency for the benefit of each municipality and school district having taxing jurisdiction over the Project under the Agency’s Destination Resort Program as defined in the Agency’s Uniform Tax Exemption Policy. The Agent Agreement, Lease Agreement, Leaseback Agreement and PILOT Agreement are collectively referred to herein as the “Company Transaction Documents”; and
WHEREAS, contemporaneously with the Effective Date of the Agent Agreement, Lease Agreement, Leaseback Agreement and PILOT Agreement between the Agency and the Company, the Agency and the EPT Entities shall enter into an Omnibus Amendment of the EPT Transaction Documents to amend the project description to remove the Land from the project description; to proportionally reduce the annual rent as contemplated by Section 2.6 of the EPT Leaseback Agreement and reduce the TVSP as established in Section 1.3(a) of the EPT PILOT Agreement, the same to be effective as of the Effective Date of the Company Transaction Documents; and
WHEREAS, pursuant to General Municipal Law Section 859-a, on Tuesday, March 12, 2013, at 2:00 p.m., local time, at the Town of Thompson Town Hall, Hearing Room, 4052 Route 42, Monticello, New York, the Agency held a public hearing with respect to the Project and the proposed Financial Assistance being contemplated by the Agency (the “Public Hearing”) whereat interested parties were provided a reasonable opportunity, both orally and in writing, to present their views; and
WHEREAS, on September 3, 2014, the Agency adopted a resolution approving the Project and describing the financial assistance the Agency has committed to the Project; and
WHEREAS, the Agent Agreement, Environmental Compliance and Indemnification Agreement (“ECIA”), Lease Agreement, Leaseback Agreement, PILOT Agreement and related documents (collectively, the “Project Documents”) were negotiated by representatives of the Agency; and
WHEREAS, on or about September 5, 2014, the Company and the Agency executed the Project Documents, where were to be effective as outlined in a letter agreement by and among the Agency, the Company and the EPT Entities (the “Closing Conditions Letter”); and
WHEREAS, following the date of the Closing Conditions Letter, on December 17, 2014, the Gaming Facility Location Board (“GFLB”) announced its recommendation to the New York State Gaming Commission (“NYSGC”) that a gaming license be awarded to Montreign; and
WHEREAS, since the date of GFLB’s recommendation, there have been unexpected delays by the NYSGC in promulgating regulations necessary to accept and process an application for a Gaming License; and
WHEREAS, despite the delays and the fact that a gaming license has yet to be issued, Montreign desires to move forward with the construction and development of the Project; and
WHEREAS, in furtherance thereof, Montreign and the Agency have agreed to amend the Closing Conditions Letter so that the Agency Agreement and ECIA shall be effective as of May 26, 2015.
NOW, THEREFORE, BE IT RESOLVED BY THE MEMBERS OF THE COUNTY OF SULLIVAN INDUSTRIAL DEVELOPMENT AGENCY AS FOLLOWS:
Section 1. The Company has presented a request to amend the Closing Conditions Letter in a form acceptable to the Agency, wherein the Company has requested that the Closing Conditions Letter be amended so that the Agency Agreement (and Sales Tax Abatement Letter) be effective as of May 26, 2015.
Section 2. The Agency hereby authorizes the amendment of the Closing Conditions Letter and issuance of a Sales Tax Abatement Letter, effective May 26, 2015, subject to the following:
- The Agent Agreement shall be amended to:
(i) evidence the effective date of May 26, 2015 (including the issuance of a Sales Tax Abatement Letter effective as of May 26, 2015);
(ii) to reduce the escrow deposit by the Company as contemplated by Section 2 of the Agent Agreement to $13,700.00; provided, however that the escrow deposit shall be increased to $137,000.00 upon issuance of a building permit for construction of the hotel or casino at the Project.
(b) that the Environmental Compliance and Indemnification Agreement (“ECIA”) shall be effective as of May 26, 2015
(c) Montreign pay to the Agency the balance of the initial project administration fee in the amount of $150,000.00.
Section 3. The officers, employees and agents of the Agency are hereby authorized and directed for and in the name and on behalf of the Agency to do all acts and things required and to execute and deliver all such certificates, instruments and documents, to pay all such fees, charges and expenses and to do all such further acts and things as may be necessary or, in the opinion of the officer, employee or agent acting, desirable and proper to effect the purposes of the foregoing resolutions and to cause compliance by the Agency with all of the terms, covenants and provisions of the documents executed for and on behalf of the Agency.
Section 4. The Chief Executive Officer, Chairman and/or Vice Chairman of the Agency are hereby authorized on behalf of the Agency, to execute and deliver the Amendment to the Closing Conditions Letter, the same to be effective as of May 26, 2015.
Section 5. These Resolutions shall take effect immediately.
The question of the adoption of the foregoing resolution was duly put to a vote on roll call, which resulted as follows:
Ira Steingart [ √ ] Yes [ ] No [ ] Absent [ ] Abstain
Edward T. Sykes [ √ ] Yes [ ] No [ ] Absent [ ] Abstain
Suzanne Loughlin [ ] Yes [ ] No [ √ ] Absent [ ] Abstain
Sean Rieber [ √ ] Yes [ ] No [ ] Absent [ ] Abstain
Charles Barbuti, Jr. [ √ ] Yes [ ] No [ ] Absent [ ] Abstain
Howard Siegel [ √ ] Yes [ ] No [ ] Absent [ ] Abstain
Carol Roig [ ] Yes [ ] No [ √ ] Absent [ ] Abstain
Paul Guenther [ √ ] Yes [ ] No [ ] Absent [ ] Abstain
The resolution was thereupon duly adopted.
STATE OF NEW YORK :
:ss.:
COUNTY OF SULLIVAN :
I, the undersigned Secretary of the County of Sullivan Industrial Development Agency, DO HEREBY CERTIFY THAT:
- I have compared the foregoing copy of a resolution of the County of Sullivan Industrial Development Agency (“Agency”) with the original thereof on file in the office of the Agency, and that the same is a true and correct copy of such resolution and of the proceedings of the Agency in connection with such matter.
- Such resolution was passed at a meeting of the Agency duly convened in public session on the 26th day of May, 2015 at 10:00 a.m. at the Sullivan County Government Center, 100 North Street, Village of Monticello, Sullivan County, New York, at which the following members were present:
PRESENT ABSENT
Ira Steingart [ √ ] [ ]
Edward T. Sykes [ √ ] [ ]
Suzanne Loughlin [ ] [ √ ]
Charles Barbuti, Jr. [ √ ] [ ]
Sean Rieber [ √ ] [ ]
Howard Siegel [ √ ] [ ]
Carol Roig [ ] [ √ ]
Paul Guenther [ √ ] [ ]
- The question of the adoption of the foregoing resolution was duly put to a vote on roll call which resulted as follows:
Ira Steingart [ √ ] Yes [ ] No [ ] Absent [ ] Abstain
Edward T. Sykes [ √ ] Yes [ ] No [ ] Absent [ ] Abstain
Suzanne Loughlin [ ] Yes [ ] No [ √ ] Absent [ ] Abstain
Sean Rieber [ √ ] Yes [ ] No [ ] Absent [ ] Abstain
Charles Barbuti, Jr. [ √ ] Yes [ ] No [ ] Absent [ ] Abstain
Howard Siegel [ √ ] Yes [ ] No [ ] Absent [ ] Abstain
Carol Roig [ ] Yes [ ] No [ √ ] Absent [ ] Abstain
Paul Guenther [ √ ] Yes [ ] No [ ] Absent [ ] Abstain
and therefore, the resolution was declared duly adopted.
I FURTHER CERTIFY that (i) all members of the Agency had due notice of said meeting, (ii) pursuant to Sections 103a and 104 of the Public Officers Law, said meeting was open to the general public and public notice of the time and place of said meeting was duly given in accordance with such Sections 103a and 104, (iii) the meeting in all respects was duly held, and (iv) there was a quorum present throughout.
IN WITNESS WHEREOF, I have hereunto set my hand and seal on the 26th day of May, 2015.
____________________________________
Secretary
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