RESOLUTION
A special meeting of County of Sullivan Industrial Development Agency (“Agency”) was convened in session at the Town of Liberty Town Hall, 120 North Main Street, Liberty, New York on November 26, 2012, at 10:00 a.m. local time.
The meeting was called to order by Chairman Ira Steingart, and, upon the roll being called, the following members of the Agency were:
PRESENT ABSENT
Ira Steingart [ ] [ ]
Harold Gold [ ] [ ]
Edward T. Sykes [ ] [ ]
Suzanne Loughlin [ ] [ ]
Charles Barbuti, Jr. [ ] [ ]
Harris Alport [ ] [ ]
Steve White [ ] [ ]
Sandy Shaddock [ ] [ ]
Sean Rieber [ ] [ ]
The following persons were also present:
Allan C. Scott, Agency Chief Executive Officer
Jennifer C.S. Brylinski, Agency Executive Director
Elizabeth A. Hunt, Agency Executive Assistant
Walter F. Garigliano, Esq., Agency Counsel
The following resolution was duly offered by _______________________, and seconded by ________________________, to wit:
Resolution No. ____- 12
RESOLUTION OF THE AGENCY APPOINTING IDEAL SNACKS CORPORATION (“COMPANY”) AS AGENT OF THE AGENCY FOR THE PURPOSE OF (a) CONSTRUCTING, INSTALLING AND EQUIPPING A TWO (2) FLOOR WAREHOUSE ADDITION CONSISTING OF APPROXIMATELY 41,000” SQUARE FEET TO THE COMPANY’S MANUFACTURING FACILITY; AND (b) CONSTRUCTING, INSTALLING AND EQUIPPING A TWO (2) FLOOR WAREHOUSE ADDITION CONSISTING OF APPROXIMATELY 65,000” SQUARE FEET TO THE COMPANY’S MANUFACTURING FACILITY; (ii) MAKING CERTAIN FINDINGS AND DETERMINATIONS WITH RESPECT TO THE FACILITY; (iii) AUTHORIZING THE EXECUTION AND DELIVERY OF AN AGENT AGREEMENT BETWEEN THE AGENCY AND THE COMPANY; (iv) AUTHORIZING THE AGENCY TO EXECUTE THE LEASE TO AGENCY; THE LEASEBACK TO COMPANY, PAYMENT IN LIEU OF TAX AGREEMENT (“PILOT AGREEMENT”) AND RELATED DOCUMENTS WITH RESPECT TO THE LEASE/LEASEBACK TRANSACTION BETWEEN THE AGENCY AND THE COMPANY
WHEREAS, by Title 1 of Article 18-A of the General Municipal Law of the State of New York (“State”), as amended, and Chapter 560 of the Laws of 1970 of the State, as amended and codified as Section 960 of the General Municipal Law (collectively, the “Act”), the Agency was created with the authority and power to own, lease and sell property as authorized by the Act; and
WHEREAS, the Company has presented two (2) applications (“Application”) to the Agency, copies of which are on file at the office of the Agency, requesting that the Agency consider undertaking the following projects:
Warehouse Phase 1
The (i) construction, installation and equipping of a two (2) story manufacturing warehouse building to consist of approximately 41,000 square feet (“Warehouse #1 Building”) situate on three (3) parcels of real estate consisting of approximately 6.9″ acres to be located at 89 Mill Street in the Village of Liberty (“Village”), Town of Liberty (“Town”), County of Sullivan (“County”), State and identified on the tax map as Town Section 113, Block 3, Lots 1.2, 1.3 and 5.1 (“Warehouse #1 Land”) and related facilities a leasehold interest in which the Agency is to acquire; (ii) acquisition and installation thereon and therein of certain furniture, fixtures, machinery, equipment and tools (“Warehouse #1 Equipment”); (iii) construction of improvements to the Warehouse #1 Building, the Warehouse #1 Land and the Warehouse #1 Equipment (collectively, the Warehouse #1 Building, the Warehouse #1 Land and the Warehouse #1 Equipment are referred to as the “Warehouse #1 Facility” or the “Warehouse #1 Project”); (iv) lease of the Warehouse #1 Facility from the Company to the Agency; and (v) leaseback of the Warehouse #1 Facility from the Agency to the Company; and
Warehouse Phase 2
The (i) construction, installation and equipping of a two (2) story manufacturing warehouse building to consist of approximately 65,000 square feet (“Warehouse #2 Building” together with Warehouse #1 Building, collectively “Building”) situate on one (1) parcel of real estate consisting of approximately 6.71″ acres to be located at 89 Mill Street in the Town, County of Sullivan, State and identified on the tax map as Town Section 113, Block 3 and Lot 5.1 (“Warehouse #2 Land” together with Warehouse #1 Land, collectively, “Land”) and related facilities a leasehold interest in which the Agency is to acquire; (ii) acquisition and installation thereon and therein of certain furniture, fixtures, machinery, equipment and tools (“Warehouse #2 Equipment” together with the Warehouse #1 Equipment, collectively, “Equipment”); (iii) construction of improvements to the Building, the Land and the Equipment (collectively, the Building, the Land and the Equipment are referred to as the “Warehouse #2 Facility” together with Warehouse #1 Facility, collectively, the “Facility” or the “Warehouse #2 Project” together with the Warehouse #1 Project, collectively, the “Project”); (iv) lease of the Warehouse #2 Facility from the Company to the Agency; and (v) leaseback of the Warehouse #2 Facility from the Agency to the Company; and
WHEREAS, the total financial assistance being contemplated by the Agency is greater than $100,000 and therefore the proposed action is subject to a public hearing; and
WHEREAS, it is contemplated that the Agency will (i) designate the Company as its agent for the purpose of constructing, installing and equipping the Project; (ii) negotiate and enter into a Lease to Agency pursuant to which the Agency takes a leasehold interest in the Facility (“Lease Agreement”), a Leaseback to Company pursuant to which the Agency leases the Facility back to the Company (“Leaseback Agreement”) and PILOT Agreement with the Company; (iii) hold a leasehold interest in the Land, the improvements and personal property thereon which constitute the Facility (once the Lease Agreement, Leaseback Agreement and PILOT Agreement have been negotiated); and (iv) provide financial assistance to the Company in the form of (a) sales tax exemption for purchases related to the of the Project; and (b) a real property tax abatement on increased value resulting from improvements to the Land through the PILOT Agreement; and
WHEREAS, pursuant to Article 8 of the Environmental Conservation Law and the regulations adopted pursuant thereto by the Department of Environmental Conservation of the State of New York (“SEQR”), the Agency constitutes a “State Agency”; and
WHEREAS, to aid the Agency in determining whether the Project may have significant adverse effects on the environment, the Company has presented a Short Environmental Assessment Form (“EAF”) to the Agency with respect to the Project for its review; and
WHEREAS, the Agency has determined that the Facility is an Unlisted Action under SEQR; and
WHEREAS, the Agency has renewed the site plan application made by the Company to the Village of Liberty Planning Board including the EAF associated therewith; and
WHEREAS, the Agency has given due consideration to the Application of the Company and to representations by the Company that the proposed financial assistance is an inducement to the Company to undertake the Project; and
WHEREAS, the Agency has considered the following matters as more fully set forth in its Uniform Tax Exemption Policies:
A. Permanent private sector job creation and retention;
B. Estimated value of the tax exemption;
C. Whether the affected taxing jurisdictions shall be reimbursed by the Company if the Facility does not fulfill the purposes for which the exemption was granted;
D. Impact of Project on existing and proposed business or economic development projects;
E. The amount of private sector investment generated or likely to be generated by the Project;
F. Demonstrated public support for the Project;
G. Likelihood of accomplishing the Project in a timely fashion;
H. Environmental impact;
I. Extent to which the Project will require additional services including, but not limited to educational, police, transportation, EMS and fire;
J. Extent to which the Project will provide additional revenues; and
K. Extent to which the Project will serve the public purposes of the Act by preserving permanent, private sector jobs or increasing the overall number of permanent, private sector jobs in the State;
and
WHEREAS, the Agency desires to encourage the Company to advance the job opportunities, health, general prosperity and economic welfare of the people of the County, State by providing the contemplated financial assistance and undertaking the Project; and
WHEREAS, the chief executive officer has negotiated the Lease Agreement, Leaseback Agreement, PILOT Agreement and related documents with the Company; and
WHEREAS, the Lease Agreement, Leaseback Agreement, PILOT Agreement and related documents have been prepared by Agency counsel.
NOW, THEREFORE, BE IT RESOLVED BY THE MEMBERS OF THE AGENCY AS FOLLOWS:
Section 1. The Company has presented to the Agency, among other things:
(A) Applications in form acceptable to the Agency;
(B) A Cost/Benefit Analysis relating to the proposed financial assistance; and
(C) An EAF.
Section 2. Based upon (i) the representations made by the Company to the Agency, and (ii) a review of the EAF and related documents, the Agency hereby determines that:
(A) The Project consists of the construction, installation and equipping of the Facility; and
(B) The Facility is an Unlisted Action under the SEQR. Based upon the review by the Agency of the EAF, the Village of Liberty site plan review proceedings and representations made by the Company to the Agency in connection with the Project, the Agency hereby finds that (i) the Project will result in no major impacts and therefore, is one which may not cause significant damage to the environment; (ii) the Project will not have a “significant effect on the environment” as such quoted term is defined in Article 8 of the Environmental Conservation Law and Regulations adopted pursuant thereto by the Department of Environmental Conservation of the State; and (iii) no “environmental impact statement” as such quoted term is defined in SEQR need be prepared for this action. This determination constitutes a negative declaration for purposes of SEQR. The Agency’s findings are incorporated in the EAF.
A copy of this resolution shall together with the attachments thereto be placed on file in the office of the Agency where the same shall be available for public inspection during business hours, and notices of this negative declaration shall be filed in such offices, posted in such places, and published in such publications as shall be necessary to conform with the requirements of SEQR.
Section 3. The Agency has determined that the proposed financial assistance does exceed the sum of $100,000.00 and therefore a public hearing on due notice was held on November 26, 2012 at 9:45 a.m., at the Town of Liberty Town Hall, 120 North Main Street, Liberty, New York at which comments relating to the proposed financial assistance were solicited. Said public hearing was open to the general public and public notice of the time and place of said public hearing was duly given in accordance with the applicable provisions of the General Municipal Law of the State.
Section 4. Based upon representations made by the Company to the Agency, the Agency hereby makes, finds and determines as follows:
(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;
(B) It is desirable and in the public interest for the Agency to (i) take a leasehold interest in the Land and to take a leasehold interest in the improvements and personal property constituting the Project; (ii) appoint the Company as its agent for purposes of constructing, installing and equipping the Project, and (iii) lease the Land, improvements and personal property constituting the Project to the Company pursuant to the Leaseback Agreement and subject to the PILOT Agreement;
(C) The Agency has the authority to take the actions contemplated therein under the Act;
(D) The action to be taken by the Agency will induce the Company to develop the Project, thereby increasing employment opportunities in Sullivan County and otherwise furthering the purposes of the Agency as set forth in the Act.
Section 5. Subject to the Company executing an Agent Agreement in form and substance approved by the Chief Executive Officer, the Agency hereby authorizes the Company to proceed with the construction, installation and equipping of the Project and hereby appoints the Company as the true and lawful agent of the Agency to construct, install and equip the Facility on behalf of the Agency; with the authority to delegate its status as agent of the Agency to the Company’s agents, subagents, contractors, subcontractors, suppliers, vendors and other such parties as the Company may choose. The appointment described above includes the following activities as they relate to the construction, installation and equipping of the Facility, whether or not the materials, services or supplies described below are incorporated into or become an integral part of the Facility; (i) all purchases, leases, rentals and other uses of tools, machinery and equipment in connection with the construction, installation and equipping of the Facility; (ii) all purchases, rentals, uses or consumption of supplies, materials and services of every kind and description in connection with the construction, installation and equipping of the Facility; and (iii) all purchases, leases, rentals and uses of equipment, machinery, and other tangible personal property (including installation costs with respect thereto), installed or placed in, upon or under the Facility, including all repairs and replacements of such property. This agency appointment includes the power to make, execute, acknowledge and deliver any contracts, orders, receipts, writings and instructions, as the stated agents for the Agency, and in general to do all things which may be requisite or proper for completing the Facility, all with the same powers and with the same validity as the Agency could do if acting on its own behalf. The aforesaid appointment of the Company as agent of the Agency to construct, install and equip the Facility shall expire on December 31, 2012 if the Lease Agreement, Leaseback Agreement and PILOT Agreement have not been executed and delivered.
Section 6. The Lease Agreement, Leaseback Agreement, PILOT Agreement and related documents which were negotiated by the Chief Executive Officer, are hereby approved as to form and substance on condition that: (i) the payments under the Leaseback Agreement include payments of all costs incurred by the Agency arising out of or related to the Project and indemnification of the Agency by the Company for actions taken by the Company and/or claims arising out of or related to the Project; and (ii) the terms of the PILOT Agreement are consistent with the Agency’s Uniform Tax Exemption Policy or the procedures for deviation have been compiled with.
Section 7. The Chairman, Vice Chairman or Chief Executive Officer of the Agency is hereby authorized, on behalf of the Agency, to execute and deliver the Lease Agreement, Leaseback Agreement, PILOT Agreement and related documents in the form presented at this meeting all with such changes, variations, omissions and insertions as the Chairman, Vice Chairman or Chief Executive Officer of the Agency shall approve, the execution thereof by the Chairman, Vice Chairman or Chief Executive Officer of the Agency to constitute conclusive evidence of such approval.
Section 8. The officers, employees and agents of the Agency are hereby authorized and directed 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 this resolution 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 9. It is hereby found and determined that all formal actions of the Agency concerning and relating to the adoption of this resolution were adopted in an open meeting of the Agency; and that all deliberations of the Agency and of any of its committees that resulted in such formal action were in meetings open to the public, in compliance with all legal requirements.
Section 10. The Chief Executive Officer, Executive Director or Counsel to the Agency is hereby authorized and directed (i) to distribute copies of this resolution to the Company; and (ii) to do such further things or perform such acts as may be necessary or convenient to implement the provisions of this resolution.
Section 11. This resolution shall take effect immediately.
THE MEMBERS VOTED ON THE FOREGOING RESOLUTION AS FOLLOWS:
Ira Steingart [ ] Yes [ ] No [ ] Absent [ ] Abstain
Harold Gold [ ] Yes [ ] No [ ] Absent [ ] Abstain
Edward T. Sykes [ ] Yes [ ] No [ ] Absent [ ] Abstain
Suzanne Loughlin [ ] Yes [ ] No [ ] Absent [ ] Abstain
Charles Barbuti, Jr. [ ] Yes [ ] No [ ] Absent [ x ] Abstain
Harris Alport [ ] Yes [ ] No [ ] Absent [ x ] Abstain
Steve White [ ] Yes [ ] No [ ] Absent [ ] Abstain
Sandy Shaddock [ ] Yes [ ] No [ ] Absent [ ] Abstain
Sean Rieber [ ] Yes [ ] No [ ] Absent [ ] Abstain
and therefore, the resolution was declared duly adopted.
STATE OF NEW YORK :
:ss.:
COUNTY OF SULLIVAN :
I, the undersigned Secretary (or Assistant) of the Agency DO HEREBY CERTIFY THAT:
1. I have compared the foregoing copy of a resolution of the 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.
2. Such resolution was passed at a meeting of the Agency duly convened in public session on the 26th day of November, 2012 at 10:00 a.m. at the Town of Liberty Town Hall, 120 North Main Street, Liberty, New York, at which the following members were present:
PRESENT ABSENT
Ira Steingart [ ] [ ]
Harold Gold [ ] [ ]
Edward T. Sykes [ ] [ ]
Suzanne Loughlin [ ] [ ]
Charles Barbuti, Jr. [ ] [ ]
Harris Alport [ ] [ ]
Steve White [ ] [ ]
Sandy Shaddock [ ] [ ]
Sean Rieber [ ] [ ]
3. The question of the adoption of the foregoing resolution was duly put to a vote on roll call which resulted follows:
Ira Steingart [ ] Yes [ ] No [ ] Absent [ ] Abstain
Harold Gold [ ] Yes [ ] No [ ] Absent [ ] Abstain
Edward T. Sykes [ ] Yes [ ] No [ ] Absent [ ] Abstain
Suzanne Loughlin [ ] Yes [ ] No [ ] Absent [ ] Abstain
Charles Barbuti, Jr. [ ] Yes [ ] No [ ] Absent [ x ] Abstain
Harris Alport [ ] Yes [ ] No [ ] Absent [ x ] Abstain
Steve White [ ] Yes [ ] No [ ] Absent [ ] Abstain
Sandy Shaddock [ ] Yes [ ] No [ ] Absent [ ] Abstain
Sean Rieber [ ] Yes [ ] No [ ] Absent [ ] Abstain
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 (Open Meetings 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 November, 2012.
____________________________________
Secretary
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