RESOLUTION
A reconvened meeting of County of Sullivan Industrial Development Agency (“Agency”) was convened in public session at the Sullivan County Government Center, 100 North Street, Village of Monticello, Sullivan County, New York on September 18, 2015 at 3:00 p.m. local time.
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 [ x ] [ ]
Edward T. Sykes [ x ] [ ]
Suzanne Loughlin [ ] [ x ]
Charles Barbuti, Jr. [ x ] [ ]
Sean Rieber [ x ] [ ]
Howard Siegel [ x ] [ ]
Carol Roig [ x ] [ ]
Paul Guenther [ x ] [ ]
The following persons were also present:
Steve White, Chief Executive Officer
Jennifer C.S. Brylinski, Agency Executive Director
Jeanne McKean, Agency Project Manager
Walter F. Garigliano, Esq., Agency General Counsel
The following resolution was duly offered by Sean Rieber, and seconded by Paul Guenther, to wit:
Resolution No. 22 – 15
RESOLUTION APPROVING THE APPLICATION OF MONTICELLO RACEWAY MANAGEMENT, INC. (“MRMI”) AND ITS AFFILIATE, MONTREIGN OPERATING COMPANY, LLC (“MONTREIGN” TOGETHER WITH MRMI COLLECTIVELY, THE “COMPANY”) FOR DEVELOPMENT OF AN ENHANCED PROJECT AND AUTHORIZING EXECUTION OF NECESSARY DOCUMENTS TO FACILITATE THE ENHANCED PROJECT
WHEREAS, the Agency was created by Chapter 560 of the Laws of 1970 of the State of New York, as amended, pursuant to Title I of Article 18-A of the General Municipal Law of the State of New York (collectively, the “Act”) as a body corporate and politic and as a public benefit corporation of the State of New York; 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, 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”), County of Sullivan (“County”), State and being more particularly identified as all or part of tax map numbers 23-1-52.1 and 23-1-48.1 (f/k/a 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”), (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, on or about September 5, 2014, the Company and the Agency entered into an Agent Agreement (the “Agent Agreement”) and Environmental Compliance and Indemnification Agreement (“ECIA”), effective as of May 1, 2015, and entered into a Bill of Sale to Agency, Bill of Sale to Company, Lease to Agency, Leaseback to Company and Payment in Lieu of Tax Agreement, which documents are not yet effective (“2014 Project Documents”); and
WHEREAS, pursuant to the 2014 Project Documents, the Agency contemplates acquiring a leasehold interest in the Project and leasing the Project back to the Company; and
WHEREAS, the 2014 Project Documents, other than the Agent Agreement and Environmental Compliance and Indemnification Agreement, are currently being held in escrow pursuant to the terms of a letter, dated September 5, 2014, which was subsequently amended by letter, dated May 1, 2015 outlining conditions precedent for the documents to be effective (collectively, the “Closing Conditions Letter”). The conditions precedent include the issuance by the New York State Gaming Commission of a license to operate a casino at the Project, which license has not been issued as of the date hereof; and
WHEREAS, subsequent to the Company and Agency entering into the 2014 Project Documents, the Company redesigned certain aspects of the Project and determined it to be in the best interest of the Project to significantly increase the Company’s investment in the Project. This request is necessary because, while the agreements pertaining to the Project anticipated some variability in the Project scope, the 2014 Project Documents do not anticipate the significantly increased capital expenditure now proposed by the Company. The Closing Conditions Letter accounted for possible changes in the scope of the Project by indicating that should a hybrid or modified Project other than the Projects then under consideration being undertaken, the 2014 Project Documents will be amended, as necessary, to accommodate the changed size and scope of the Project and to proportionally reduce or modify the Agency’s fees, rents, employment obligations and Total Value Subject to PILOT as set forth in the 2014 Project Documents; and
WHEREAS, the Company has revised its plans to increase its anticipated minimum total capital investment in the Project by approximately $150,000,000 for a total minimum capital investment of approximately $600,000,000 to create an enhanced Project (the “Enhanced Project”). The Enhanced Project will provide a higher level of amenities to patrons of the Montreign Resort Casino by expanding the size of the gaming floor and hotel rooms, redesigning non-gaming portions and removing the harness horse racetrack and associated facilities; and
WHEREAS, the Company has already obtained the necessary environmental and land use approvals for the Enhanced Project. On July 21, 2015, the Town of Thompson Town Board issued its Negative Declaration of Environmental Significance pursuant to the New York State Environmental Quality Review Act, Article 8 of the Environmental Conservation Law and the regulations adopted pursuant thereto at 6 N.Y.C.R.R. Part 617, as amended (collectively referred to as “SEQRA”) for the Enhanced Project and on July 22, 2015, the Town of Thompson Planning Board adopted a resolution independently finding that the Company had complied with SEQRA and granting the Final Site Development Plan Approval for the Enhanced Project; and
WHEREAS, the Agency, as an Involved Agency during the environmental review of the Enhanced Project, has determined that the Negative Declaration of Environmental Significance issued by the Town Board for the Enhanced Project and finds that all of the provisions of SEQRA that are required to be complied with as a condition precedent to its consideration and determination of this application have been satisfied; and
WHEREAS, pursuant to General Municipal Law Section 859-a, on Monday, September 14, 2015, at 11:00 a.m., local time, at the Sullivan County Government Center Legislative Committee Room, 100 North Street, Monticello, New York 12701, 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, which was recessed and held open until Thursday, September 17, 2015, at 5:00 p.m.; and
WHEREAS, the Agency contemplates that it will provide financial assistance to the Company in the form of sales and use tax exemption and a mortgage recording tax exemption, consistent with the policies of the Agency, and a partial real property tax abatement (“Financial Assistance”).
NOW, THEREFORE, BE IT RESOLVED BY THE MEMBERS OF THE AGENCY AS FOLLOWS:
Section 1. The Agency hereby approves the Company’s request to develop the Enhanced Project.
Section 2. The Agency hereby ratifies and confirms its findings made in the Inducement Resolution, dated March 19, 2013 and in the prior approval Resolutions, dated September 3, 2014 and May 26, 2015, adopted by the Agency pertaining to the Project.
Section 3. In accordance with the Inducement Resolution and prior Approval Resolutions, and the subsequent findings made by the Town of Thompson Town Board as Lead Agency, all provisions of SEQRA, that are required to be complied with as a condition precedent the approval of Financial Assistance for the Enhanced Project have been satisfied.
Section 4. The public hearing held by the Agency on Monday, September 14, 2015, at 11:00 a.m., concerning the Enhanced Project and the Financial Assistance was duly held in accordance with the Act, including but not limited to the giving of at least ten (10) days published notice of the Public Hearing (such notice also provided to the Chief Executive Officer of each affected tax jurisdiction), affording interested parties a reasonable opportunity, both orally and in writing, to present their views with respect to the Enhanced Project, which was recessed and held open until Thursday, September 17, 2015, at 5:00 p.m.
Section 5. The Agent Agreement shall be amended or restated, as required by the Agency, to expire on December 31, 2015 if the Lease Agreement, Leaseback Agreement and PILOT Agreement contemplated have not been executed and delivered, and to reflect the Agency’s authorization and approval of the Company, as its agent, to make purchases of goods and services relating to the Enhanced Project and that would otherwise be subject to New York State and local sales and use tax in an amount up to $437,500,000, which result in New York State and local sales and use tax exemption benefits (“sales and use tax exemption benefits”) not to exceed $35,000,000. The Agency agrees to consider any requests by the Company for increase to the amount of sales and use tax exemption benefits authorized by the Agency upon being provided with appropriate documentation detailing the additional purchases of property or services.
Section 6. In furtherance of facilitating the Enhanced Project, the Chairman or Chief Executive Officer of the Agency, each acting individually, are each hereby authorized, on behalf of the Agency, to enter into or amend, as required, all necessary documents for the purpose of acknowledging the increased investment anticipated to be made by the Company in the purchase of goods and services subject to New York State and local Sales and use taxes; proportionally increasing the annual rent to the Agency as set forth in a Leaseback Agreement; increasing the TVSP as set forth in the PILOT Agreement; and proportionally increasing the Agency transaction fees, which such documents shall include, but not be limited to, an Agent Agreement, Environmental Compliance and Indemnification Agreement, Bill of Sale to Agency, Bill of Sale to Company, Lease to Agency, Leaseback to Company, Payment in Lieu of Tax Agreement and an Omnibus Amendment (“2015 Project Documents”), in form approved by Counsel to the Agency and with such changes, variations, omissions and insertions as the Chairman or Chief Executive Officer of the Agency shall approve, the execution thereof by the Chairman or Chief Executive Officer of the Agency to constitute conclusive evidence of such approval.
Section 7. The PILOT Agreement under the terms of the “Destination Resort Program” under the Agency’s Uniform Tax Exemption Policy is hereby approved.
Section 8. Upon execution of the 2015 Project Documents, the 2014 Project Documents, with the exception of the Agent Agreement and Environmental Compliance and Indemnification Agreement, shall be superseded and of no force and effect.
Section 9. The 2015 Project Documents shall not be effective until all terms and conditions of a Closing Conditions Letter have been satisfied, including, but not limited to, the issuance of a Gaming Facility License by the New York State Gaming Commission.
Section 10. 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, documents, and 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 on behalf of the Agency desirable and proper to effect the purposes of the foregoing resolutions and to cause compliance by the Agency with all the terms, covenants and provisions of the documents for and on behalf of the Agency.
Section 11. These resolutions shall take effect immediately.
The question of adoption of the foregoing Resolution was duly put to a vote on roll call, which resulted as follows:
Ira Steingart [ x ] Yes [ ] No [ ] Absent [ ] Abstain
Edward T. Sykes [ x ] Yes [ ] No [ ] Absent [ ] Abstain
Suzanne Loughlin [ ] Yes [ ] No [ x ] Absent [ ] Abstain
Charles Barbuti, Jr. [ x ] Yes [ ] No [ ] Absent [ ] Abstain
Sean Rieber [ x ] Yes [ ] No [ ] Absent [ ] Abstain
Howard Siegel [x ] Yes [ ] No [ ] Absent [ ] Abstain
Carol Roig [ x ] Yes [ ] No [ ] Absent [ ] Abstain
Paul Guenther [ x ] Yes [ ] No [ ] Absent [ ] Abstain
The Resolutions were thereupon duly adopted.
STATE OF NEW YORK :
:ss.:
COUNTY OF SULLIVAN :
I, the undersigned Secretary (Assistant) 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 18th day of September, 2015 at 3:00 p.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 [ x ] [ ]
Edward T. Sykes [ x ] [ ]
Suzanne Loughlin [ ] [ x ]
Charles Barbuti, Jr. [ x ] [ ]
Sean Rieber [ x ] [ ]
Howard Siegel [ x ] [ ]
Carol Roig [ x ] [ ]
Paul Guenther [ x ] [ ]
- The question of the adoption of the foregoing resolution was duly put to a vote on roll call which resulted as follows:
Ira Steingart [x ] Yes [ ] No [ ] Absent [ ] Abstain
Edward T. Sykes [ x ] Yes [ ] No [ ] Absent [ ] Abstain
Suzanne Loughlin [ ] Yes [ ] No [ x ] Absent [ ] Abstain
Charles Barbuti, Jr. [ x ] Yes [ ] No [ ] Absent [ ] Abstain
Sean Rieber [ x ] Yes [ ] No [ ] Absent [ ] Abstain
Howard Siegel [ x ] Yes [ ] No [ ] Absent [ ] Abstain
Carol Roig [ x ] Yes [ ] No [ ] Absent [ ] Abstain
Paul Guenther [ x ] 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 18th day of September, 2015.
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Secretary
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