AMENDED RESOLUTION
A Special meeting of County of Sullivan Industrial Development Agency (“Agency”) was convened in session at the Sullivan County Government Center, Monticello, New York on October 30, 2014, at 10:00 a.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 [ √ ] [ ]
Edward T. Sykes [ √ ] [ ]
Suzanne Loughlin [ ] [ √ ]
Charles Barbuti, Jr. [ ] [ √ ]
Steve White [ √ ] [ ]
Sandy Shaddock [ ] [ √ ]
Sean Rieber [ √ ] [ ]
Howard Siegel [ √ ] [ ]
Carol Roig [ √ ] [ ]
The following persons were also present:
Allan C. Scott, 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 Steve White, and seconded by Edward T. Sykes, to wit:
Resolution No. 33 – 14
RESOLUTION AMENDING RESOLUTION NO. 32-14
RELATING TO THE LIBERTY STORAGE PROJECT
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, on or about June 16, 2003, Liberty Storage, L.L.C. (“Liberty Storage”) and the Agency closed on a straight lease transaction relating to the multi-phase development of self-storage units (the “Project”) on premises located at 1695 Route 52 in the Town of Liberty, County of Sullivan, State of New York consisting of approximately 9.36± acres of land and identified on the Town of Liberty tax map as Section 30, Block 1, Lot 90.7 (“Land”) and in furtherance thereof entered into various agreements including but not limited to a Lease Agreement and a Payment in Lieu of Tax Agreement (“2003 Transaction Documents”); and
WHEREAS, on or about June 16, 2003 Liberty Storage and the Agency entered into an Agent Agreement pursuant to which the Agency appointed Liberty Storage as its Agent to construct the first phase of the project (“2003 Agent Agreement”); and
WHEREAS, on or about September 1, 2004 Liberty Storage applied to the Agency and the Agency approved the construction of additional improvements on the Land and in furtherance thereof entered into various agreements including but not limited to an Amended and Restated Agent Agreement, an Amended and Restated Lease Agreement and an Amended and Restated Payment in Lieu of Tax Agreement (“2004 Transaction Documents” and together with the 2003 Transaction Documents and the 2003 Agent Agreement, the “Liberty Storage Project Documents”); and
WHEREAS, Liberty Storage desires to transfer, assign and convey to the Company the Project and all of its right, title and interest in and to the Liberty Storage Project Documents, and the Company, subject to the terms and conditions of the Liberty Storage Project Documents, desires to accept and purchase all of Liberty Storage’s right, title and interest in and to the Project and the Liberty Storage Project Documents; and
WHEREAS, the Company has presented an application (“Application”) to the Agency, a copy of which is on file at the office of the Agency, requesting that the Agency consent to (i) the assignment of the Project and all right, title and interest in and to the Liberty Storage Project Documents from Liberty Storage to the Company and (ii) consider undertaking the final phase of the Project consisting of the (a) construction and equipping of an approximately 14,400 square foot building on the Land intended to be used as a self-storage building (“Building 1”); (b) the acquisition and installation thereon and therein of certain equipment (“Equipment”) (collectively the “2014 Project”); and (iii) a mortgage tax exemption for financing related to the Project; and
WHEREAS, the total financial assistance being contemplated by the Agency is less than $100,000; and
WHEREAS, on or about June 10, 2003, the Agency determined that the Project was an Unlisted Action under SEQR and adopted a negative declaration relating thereto; 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 acquire the Project and undertake the 2014 Project; and
WHEREAS, the Agency has considered the following matters as more fully set forth in its Uniform Tax Exemption Policies:
- Permanent private sector job creation and retention;
- Estimated value of the tax exemption;
- Impact of Project on existing and proposed business or economic development projects;
- The amount of private sector investment generated or likely to be generated by the Project;
- Demonstrated public support for the Project;
- Likelihood of accomplishing the Project in a timely fashion;
- Extent to which the Project will require additional services including, but not limited to educational, police, transportation, EMS and fire;
- Extent to which the Project will provide additional revenues; and
- Extent to which the Project will serve the public purposes of the Act by preserving permanent, private sector jobs and 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 Sullivan County, New York by providing the contemplated financial assistance for acquiring the Project and undertaking the 2014 Project; and
WHEREAS, the Chairman has negotiated an Agent Agreement, a Second Amended and Restated Lease Agreement, a Second Amended and Restated PILOT Agreement and related documents with the Company; and
WHEREAS, the Agent Agreement, a Second Amended and Restated Lease Agreement, a Second Amended and Restated PILOT Agreement and related documents have been prepared by Agency counsel; and
WHEREAS, by Resolution No. 32-14, adopted October 24, 2014, the Agency consented to the assignment of the Project and Liberty Storage Project Documents from Liberty Storage to the Company; (ii) designated the Company as its agent for the purpose of the 2014 Project and entered into an Agent Agreement related thereto; (iii) agreed to provide financial assistance to the Company in the form of sales tax exemption for purchases related to the construction of the 2014 Project; and (iv) authorized a mortgage tax exemption for financing related to the Project.
WHEREAS, by Amended Application dated October 29, 2014, the Company withdrew its request for financial assistance in the form of a mortgage tax abatement and requested the Agency join in execution of a Fee and Leasehold Mortgage, Assignment of Leases and Rents, Fixture Filing and Security Agreement and related documents, securing $12,500,000.00 to be recorded together with payment of mortgage tax thereon partially payable in both Sullivan County and Orange County.
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 an Application and Amended Application in form acceptable to the Agency.
Section 2. Based upon (i) the representations made by the Company to the Agency, the Agency hereby determines that:
(A) The Project consists of the (i) assignment of the Project and all right, title and interest in and to the Liberty Storage Project Documents; and (ii) construction and equipping the final phase of the Project; and
(B) The Agency issued a Negative Declaration relating to the Project on or about June 10, 2003.
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.
Section 3. The Agency has determined that the proposed financial assistance does not exceed the sum of $100,000.00 and therefore the proposed action is not subject to a public hearing.
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) consent to the transfer of the Project from Liberty Storage to the Company; (ii) appoint the Company as its agent for purposes of constructing and equipping the 2014 Project, and (iii) amend and restate the transaction document governing the Project, including an Agent Agreement, a Second Amended and Restated Lease Agreement and a Second Amended and Restated 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 2014 Project, thereby increasing employment opportunities in Sullivan County and otherwise furthering the purposes of the Agency as set forth in the Act.
Section 5. The Agency hereby consents to the assignment of the Project and all right, title and interest in and to the Liberty Storage Project Documents from Liberty Storage to the Company subject to:
- Payment to the Agency of a consent fee in the amount equal to two (2) times the annual rent; to wit Five Thousand and 00/100 ($5,000.00) Dollars;
- Payment to the Agency or its service providers of all costs associated with the contemplated transfer;
- Execution by the Company of documents necessary to memorialize the transfer, including but not limited to the Second Amended and Restated Lease Agreement and the Second Amended and Restated PILOT Agreement
Section 6. Subject to the Company executing an Agent Agreement in form and substance approved by the Chairman, the Agency hereby authorizes the Company to proceed with the construction and equipping of the 2014 Project and hereby appoints the Company as the true and lawful agent of the Agency to construct and equip the 2014 Project 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 and equipping of the 2014 Project, whether or not the materials, services or supplies described below are incorporated into or become an integral part of the 2014 Project; (i) all purchases, leases, rentals and other uses of tools, machinery and equipment in connection with the construction and equipping of the 2014 Project; (ii) all purchases, rentals, uses or consumption of supplies, materials and services of every kind and description in connection with the construction and equipping of the 2014 Project; 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 2014 Project, 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 2014 Project, 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 and equip the 2014 Project shall expire on May 13, 2016 if the Second Amended and Restated Lease Agreement and Second Amended and Restated PILOT Agreement have not been executed and delivered.
Section 7. The Agent Agreement, Second Amended and Restated Lease Agreement, Second Amended and Restated PILOT Agreement and related documents which were negotiated by the Chairman, are hereby approved as to form and substance on condition that: (i) the payments under the Second Amended and Restated Lease Agreement include payments of all costs incurred by the Agency arising out of or related to the transfer of the Project and the 2014 Project and indemnification of the Agency by the Company for actions taken by the Company and/or claims arising out of or related to transfer of the Project and the 2014 Project.
Section 8. The Chairman, Vice Chairman or Chief Executive Officer of the Agency is hereby authorized, on behalf of the Agency, to execute and deliver the Agent Agreement, the Second Amended and Restated Lease Agreement, Second Amended and Restated 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 9. The Chairman, Vice Chairman or Chief Executive Officer of the Agency is hereby authorized, on behalf of the Agency, to execute and deliver the Estoppel Certificate; Assignment of Lease and Rents; Fee and Leasehold Mortgage, Assignment of Leases and Rents, Fixture Filing and Security Agreement; and all documents reasonably contemplated by these resolutions or prepared on advice of counsel to the Agency (“Financing Documents”); and, where appropriate, the Secretary or Assistant Secretary of the Agency is hereby authorized to affix the seal of the Agency to the Financing Documents and to attest the same, provided that 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 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 11. 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 12. The Chairman, Vice Chairman or 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 13. This resolution shall take effect immediately.
THE MEMBERS VOTED ON THE FOREGOING RESOLUTION AS FOLLOWS:
Ira Steingart [ √ ] Yes [ ] No [ ] Absent [ ] Abstain
Edward T. Sykes [ √ ] Yes [ ] No [ ] Absent [ ] Abstain
Suzanne Loughlin [ ] Yes [ ] No [ √ ] Absent [ ] Abstain
Charles Barbuti, Jr. [ ] Yes [ ] No [ √ ] Absent [ ] Abstain
Steve White [ √ ] Yes [ ] No [ ] Absent [ ] Abstain
Sandy Shaddock [ ] Yes [ ] No [ √ ] Absent [ ] Abstain
Sean Rieber [ √ ] Yes [ ] No [ ] Absent [ ] Abstain
Howard Siegel [ √ ] Yes [ ] No [ ] Absent [ ] Abstain
Carol Roig [ √ ] Yes [ ] No [ ] Absent [ ] Abstain
and therefore, the resolution was declared duly adopted.
STATE OF NEW YORK :
:ss.:
COUNTY OF SULLIVAN :
I, the undersigned Secretary (Assistant) of the Agency DO HEREBY CERTIFY THAT:
- 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.
- Such resolution was passed at a meeting of the Agency duly convened in public session on the 30th day of October, 2014 at 10:00 a.m. at the Sullivan County Government Center, 100 North Street, Monticello, 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 follows:
Ira Steingart [ √ ] Yes [ ] No [ ] Absent [ ] Abstain
Edward T. Sykes [ √ ] Yes [ ] No [ ] Absent [ ] Abstain
Suzanne Loughlin [ ] Yes [ ] No [ √ ] Absent [ ] Abstain
Charles Barbuti, Jr. [ ] Yes [ ] No [ √ ] Absent [ ] Abstain
Steve White [ √ ] Yes [ ] No [ ] Absent [ ] Abstain
Sandy Shaddock [ ] Yes [ ] No [ √ ] Absent [ ] Abstain
Sean Rieber [ √ ] Yes [ ] No [ ] Absent [ ] Abstain
Howard Siegel [ √ ] Yes [ ] No [ ] Absent [ ] Abstain
Carol Roig [ √ ] 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 30th day of October, 2014.
____________________________________
Secretary
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