CONCORD ASSOCIATES, L.P. AUTHORIZING RESOLUTION
(Mohegan Sun at the Concord Project)
A special meeting of the County of Sullivan Industrial Development Agency was convened in public session on August 27, 2014, at 12:30 p.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. [ √ ] [ ]
Steve White [ √ ] [ ]
Sandy Shaddock [ ] [ √ ]
Sean Rieber [ ] [ √ ]
Howard Siegel [ √ ] [ ]
Carol Roig [ √ ] [ ]
The following persons were also present:
Jennifer C.S. Brylinski, Agency Executive Director
Jennifer M. Flad, Agency Vice-President of Government Affairs and Business Development
Allan C. Scott, Chief Executive Officer
Walter F. Garigliano, Agency General Counsel
Shawn Griffin, Esq., Harris Beach, PLLC
The following resolution was duly offered by Edward T. Sykes, and seconded by Suzanne Loughlin to wit:
Resolution No. 27 – 14
RESOLUTION OF THE COUNTY OF SULLIVAN INDUSTRIAL DEVELOPMENT AGENCY (THE “AGENCY”) (1) ACKNOWLEDGING THE PUBLIC HEARING HELD BY THE AGENCY ON AUGUST 25, 2014, WITH RESPECT TO THE MOHEGAN SUN AT CONCORD PROJECT (THE “MODIFIED PROJECT”, AS MORE FULLY DESCRIBED BELOW), (2) APPOINTING CONCORD ASSOCIATES, L.P. AND ITS AFFILIATES, CONCORD KIAMESHA, LLC, CONCORD KIAMESHA CASINO, LLC AND/OR CONCORD KIAMESHA HOTEL, LLC (TOGETHER, THE “COMPANY”) AS AGENT OF THE AGENCY TO UNDERTAKE THE MODIFIED PROJECT, (3) DESCRIBING THE FORMS OF FINANCIAL ASSISTANCE BEING CONTEMPLATED BY THE AGENCY WITH RESPECT TO THE MODIFIED PROJECT; AND (4) AUTHORIZING THE EXECUTION AND DELIVERY OF AN AGENT AGREEMENT, LEASE AGREEMENT, LEASEBACK AGREEMENT, PILOT AGREEMENT AND MORTGAGE AND RELATED DOCUMENTS
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”), COUNTY OF SULLIVAN INDUSTRIAL DEVELOPMENT AGENCY (hereinafter called 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, the Company previously submitted one or more applications, dated July 17, 2008 to the Agency (together, the “Original Application”) requesting the Agency’s assistance with a certain Concord Empire Original Project (as defined in the Prior Resolutions, as defined below); and
WHEREAS, by resolutions duly adopted by the Agency on July 25, 2008 (as supplemented by resolution duly adopted by the Agency on December 9, 2008) and attached hereto as Exhibit A (together, the “Prior Resolutions”) the Agency (1) approved certain Financial Assistance (as defined in the Prior Resolutions) for the Concord Empire Original Project; (2) determined that all provisions 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”), that are required to be complied with as a condition precedent the approval of Financial Assistance for the Concord Empire Original Project had been satisfied; (3) determined that, based upon the Agency’s review of the Comprehensive Development Plan approved by the Town of Thompson Planning Board, the Concord Empire Original Project is likely to attract a significant number of visitors from out the economic development region (as established by Section 230 of the New York State Economic Development Law) that includes the Modified Project, and is therefore a “tourism destination” within the meaning of the Act; and (4) authorized the execution and delivery of certain documents related to the Concord Empire Original Project; and
WHEREAS, the Company has submitted to the Agency an Amended and Restated Application and letter, dated August 5, 2014 and August 21, 2014, of DelBello Donnellan Weingarten Wise & Wiederkehr, LLP amending the Application (as so amended, the “Application”), requesting the Agency’s assistance with a certain project modifying and amending the Concord Empire Original Project (as so modified and amended, the “Modified Project”) to be known as “Mohegan Sun at the Concord” consisting of the following principal components: (i) the acquisition by the Agency of a leasehold and/or subleasehold interest in approximately 140 acres of land located in the Town of Thompson, Sullivan County, New York (being more fully identified as tax map Section 9, Block 1, Lots 27.2, 34.1, 34.2, 34.4, 34.5, 34.6, 34.7 and 79 and Section 10, Block 12, Lot 6 and Section 10, Block 15, Lot 5.2) (the “Land”); (ii) the acquisition and construction by the Company on the Land of: (a) a hotel containing approximately 252 guest rooms together with restaurant space, retail space and meeting and entertainment space, (b) a Class III casino with 52,000 square-feet of state-of-the-art gaming floor and up to approximately 2,500 gaming slot and table positions, and (c) parking garages, on-site parking, roadway and other infrastructure improvements to service the foregoing ((a) – (c) being hereinafter collectively referred to as the “Improvements”); (iii) the acquisition in and around the Improvements of certain items of equipment and other tangible personal property (the “Equipment” and together with the Land and the Improvements, the “Facility”); and (iv) the financing of all or a portion of the foregoing through a straight lease transaction (within the meaning of subdivision (15) of Section 854 of the Act), pursuant to which the Agency shall ground lease the Land from the Company and appoint the Company as its agent to undertake the Modified Project and shall sublease the Facility back to the Company (the “Straight Lease Transaction”); 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 Modified 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 Modified 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 Modified 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 Modified Project under the Agency’s Destination Resort Program as defined in the Agency’s Uniform Tax Exemption Policy; and
WHEREAS, pursuant to General Municipal Law Section 859-a, on Monday, August 25, 2014, at 6:00 p.m., local time, at the Sullivan County Government Center, 100 North Street, Monticello, New York, the Agency held a public hearing with respect to the Modified 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. A summary of the Minutes of the Public Hearing together with the Notice of Public Hearing published and forwarded to the affected taxing jurisdictions ten (10) days prior to said Public Hearing are attached hereto as Exhibit B; and
WHEREAS, pursuant to Article 18-A of the General Municipal Law the Agency desires to adopt a resolution describing the Modified Project and the Financial Assistance that the Agency is contemplating with respect to the Modified Project; and
WHEREAS, the Agent Agreement, Lease Agreement, Leaseback Agreement, PILOT Agreement and related documents are being negotiated and will be presented to the Chief Executive Officer, Chairman and/or Vice Chairman for execution upon approval of this resolution.
NOW, THEREFORE, BE IT RESOLVED BY THE MEMBERS OF THE COUNTY OF SULLIVAN INDUSTRIAL DEVELOPMENT AGENCY AS FOLLOWS:
Section 1. The Agency hereby ratifies and confirms its findings made in the Prior Resolutions.
Section 2. The Company has presented the Application in a form acceptable to the Agency. Based upon the representations made by the Company to the Agency in the Application, the Agency hereby finds and determines that:
(A) By virtue of the Act, the Agency has been vested with all powers necessary and convenient to carry out and effectuate the purposes and provisions of the Act and to exercise all powers granted to it under the Act; and
(B) It is desirable and in the public interest for the Agency to appoint the Company as its agent for purposes of acquiring, constructing and equipping the Modified Project; and
(C) The Agency has the authority to take the actions contemplated herein under the Act; and
(D) The action to be taken by the Agency will induce the Company and its related entities to develop the Modified Project, thereby increasing employment opportunities and preventing economic deterioration in Sullivan County, New York, and otherwise furthering the purposes of the Agency as set forth in the Act; and
(E) The Modified Project will not result in the removal of a civic, commercial, industrial, or manufacturing plant of the Company and its related entities or any other proposed occupant of the Modified Project from one area of the State of New York (the “State”) to another area of the State or result in the abandonment of one or more plants or facilities of the Company and its related entities or any other proposed occupant of the Modified Project located within the State; and the Agency hereby finds that, based on the Application, to the extent occupants are relocating from one plant or facility to another, the Modified Project is reasonably necessary to discourage the Modified Project occupants from removing such other plant or facility to a location outside the State and/or is reasonably necessary to preserve the competitive position of the Modified Project occupants in their respective industries; and
(F) The Modified Project, in accordance with the Prior Resolutions, is likely to attract a significant number of visitors from outside the economic development region as established by Section 230 of the New York State Economic Development Law in which the Modified Project is located; and
(G) In accordance with the Prior Resolutions, all provisions of 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”), that are required to be complied with as a condition precedent the approval of Financial Assistance for the Modified Project had been satisfied.
Section 3. The public hearing held by the Agency on Monday, August 25, 2014, concerning the Modified 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 Modified Project.
Section 4. Subject to the Company executing the Agent Agreement and the delivery to the Agency of a binder, certificate or other evidence of liability insurance policy for the Modified Project satisfactory to the Agency, the Agency hereby authorizes the Company to proceed with the acquisition, construction and equipping of the Modified Project and hereby appoints the Company as the true and lawful agent of the Agency: (i) to acquire, construct and equip the Modified Project; (ii) to make, execute, acknowledge and deliver any contracts, orders, receipts, writings and instructions, as the stated agent for the Agency with the authority to delegate such agency, in whole or in part, to agents, subagents, contractors, and subcontractors of such agents and subagents and to such other parties as the Company chooses; and (iii) in general, to do all things which may be requisite or proper for completing the Modified Project, all with the same powers and the same validity that the Agency could do if acting in its own behalf; provided, however, the Agent Agreement shall expire on December 31, 2016(unless extended for good cause by the Chief Executive Officer of the Agency) if the Lease Agreement, Leaseback Agreement and PILOT Agreement contemplated have not been executed and delivered.
Section 5. Based upon the representation and warranties made by the Company in its application for financial assistance, the Agency hereby authorizes and approves the Company, as its agent, to make purchases of goods and services relating to the Modified Project and that would otherwise be subject to New York State and local sales and use tax in an amount up to $148,943,000, which result in New York State and local sales and use tax exemption benefits (“sales and use tax exemption benefits”) not to exceed$11,915,440. 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. Pursuant to Section 875(3) of the New York General Municipal Law, the Agency may recover or recapture from the Company, its agents, consultants, subcontractors, or any other party authorized to make purchases for the benefit of the Modified Project, any sales and use tax exemption benefits taken or purported to be taken by the Company, its agents, consultants, subcontractors, or any other party authorized to make purchases for the benefit of the Modified Project, if it is determined that: (i) the Company, its agents, consultants, subcontractors, or any other party authorized to make purchases for the benefit of the Modified Project, is not entitled to the sales and use tax exemption benefits; (ii) the sales and use tax exemption benefits are in excess of the amounts authorized to be taken by the Company, its agents, consultants, subcontractors, or any other party authorized to make purchases for the benefit of the Modified Project; (iii) the sales and use tax exemption benefits are for property or services not authorized by the Agency as part of the Modified Project; or (iv) the sales and use tax exemption benefits are taken in cases where the Company, its agents, consultants, subcontractors, or any other party authorized to make purchases for the benefit of the Modified Project, fails to comply with a material term or condition to use property or services in the manner approved by the Agency in connection with the Modified Project. As a condition precedent of receiving sales and use tax exemption benefits, the Company, its agents, consultants, subcontractors, or any other party authorized to make purchases for the benefit of the Modified Project, must (i) cooperate with the Agency in its efforts to recover or recapture any sales and use tax exemption benefits, and (ii) promptly pay over any such amounts to the Agency that the Agency demands.
Section 7. The Chief Executive Officer, Chairman and/or Vice Chairman of the Agency of the are hereby authorized, on behalf of the Agency, to execute (1) an Agent Agreement, pursuant to which the Agency appoints the Company as its agent to undertake the Modified Project; (2) a Lease Agreement (or Sublease Agreement), pursuant to which the Company leases the Modified Project to the Agency, (3) a related Leaseback Agreement (or Sub-Leaseback Agreement), pursuant to which the Agency leases its interest in the Modified Project back to the Company and/or its related entities, (4) a PILOT Agreement pursuant to which the Company and/or its related entities agrees to make certain payments in lieu of real property taxes for the benefit of each municipality and school district having taxing jurisdiction over the Modified Project under the Agency’s Destination Resort Program as defined in the Agency’s Uniform Tax Exemption Policy, and (5) related documents; provided (i) the rental payments under the Leaseback Agreement include payments of all costs incurred by the Agency arising out of or related to the Modified Project and indemnification of the Agency by the Company and/or its related entities for actions taken by the Company and/or its related entities and/or claims arising out of or related to the Modified Project; and (ii) the terms of the PILOT Agreement are consistent with the Agency’s Uniform Tax Exemption Policy or the procedures for deviation therefrom have been complied with.
Section 8. To the extent the proposed terms of the PILOT Agreement may deviate from the Agency’s Uniform Tax Exemption Policy, the Agency authorizes commencement of procedures for deviation as required under Section 874 of the Act. Otherwise, the PILOT Agreement under the terms of the “Destination Resort Program” under the Agency’s Uniform Tax Exemption Policy is hereby approved.
Section 9. The Chief Executive Officer, Chairman and/or Vice Chairman of the Agency are hereby authorized, on behalf of the Agency, to execute and deliver any mortgage, assignment of leases and rents, security agreement, UCC-1 Financing Statements and all documents reasonably contemplated by these resolutions or required by any Lender identified by the Company (the “Lender”) up to a maximum principal amount necessary to undertake the Project, acquire the Facility and/or finance or refinance equipment and other personal property and related transactional costs (hereinafter, with the Agent Agreement, Lease Agreement, Leaseback Agreement, Tax Agreement and Tax Agreement Mortgage, collectively called the “Agency Documents”); and, where appropriate, the Secretary or Assistant Secretary of the Agency is hereby authorized to affix the seal of the Agency to the Agency Documents and to attest the same, all with such changes, variations, omissions and insertions as the Chief Executive Officer, Chairman and/or Vice Chairman of the Agency shall approve, the execution thereof by the Chief Executive Officer, Chairman and/or Vice Chairman of the Agency to constitute conclusive evidence of such approval; provided in all events recourse against the Agency is limited to the Agency’s interest in the Project.
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 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 11. 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
Charles Barbuti, Jr. [ √ ] Yes [ ] No [ ] Absent [ ] Abstain
Sandy Shaddock [ ] Yes [ ] No [ √ ] Absent [ ] Abstain
Suzanne Loughlin [ ] Yes [ ] No [ √ ] Absent [ ] Abstain
Sean Rieber [ √ ] Yes [ ] No [ ] Absent [ ] Abstain
Steve White [ √ ] Yes [ ] No [ ] Absent [ ] Abstain
Howard Siegel [ √ ] Yes [ ] No [ ] Absent [ ] Abstain
Carol Roig [ √ ] 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 27th day of August, 2014 at 12:30 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 [ √ ] [ ]
Edward T. Sykes [ √ ] [ ]
Suzanne Loughlin [ √ ] [ ]
Charles Barbuti, Jr. [ √ ] [ ]
Steve White [ √ ] [ ]
Sandy Shaddock [ ] [ √ ]
Sean Rieber [ ] [ √ ]
Howard Siegel [ √ ] [ ]
Carol Roig [ √ ] [ ]
- 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
Charles Barbuti, Jr. [ √ ] Yes [ ] No [ ] Absent [ ] Abstain
Sandy Shaddock [ ] Yes [ ] No [ √ ] Absent [ ] Abstain
Suzanne Loughlin [ ] Yes [ ] No [ √ ] Absent [ ] Abstain
Sean Rieber [ √ ] Yes [ ] No [ ] Absent [ ] Abstain
Steve White [ √ ] Yes [ ] No [ ] Absent [ ] Abstain
Howard Siegel [ √ ] Yes [ ] No [ ] Absent [ ] Abstain
Carol Roig [ √ ] 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 27th day of August, 2014.
____________________________________
Suzanne Loughlin, Secretary
Exhibit A
PRIOR RESOLUTIONS
Exhibit B
SUMMARY OF PUBLIC HEARING MINUTES
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