RESOLUTION
A reconvened meeting of County of Sullivan Industrial Development Agency (“Agency”) was convened in session at the Sullivan County Government Center, 100 North Street, Monticello, New York on March 27, 2012, at 10:00 a.m. local time.
The meeting was called to order by Ira Steingart, and, upon the roll being called, the following members of the Agency were:
PRESENT ABSENT
Ira Steingart [ ] [ ]
Harold Gold [ ] [ ]
Raymond Walter [ ] [ ]
Edward T. Sykes [ ] [ ]
Charles Barbuti, Jr. [ ] [ ]
Harris Alport [ ] [ ]
Suzanne Loughlin [ ] [ ]
Cindy L. Garlinghouse [ ] [ ]
Steve White [ ] [ ]
The following persons were also present:
Allan C. Scott, 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 CONSTRUCTING AND EQUIPPING AN APPROXIMATELY 20,000± SQUARE FOOT EXPANSION TO THE COMPANY’S PRESENT MANUFACTURING FACILITY; MAKING CERTAIN FINDINGS AND DETERMINATIONS WITH RESPECT TO THAT CONSTRUCTION; AND AUTHORIZING THE EXECUTION AND DELIVERY OF A THIRD OMNIBUS AMENDMENT TO PROJECT DOCUMENTS AND RELATED DOCUMENTS 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, on or about August 1, 2003 Ideal Snacks, Inc. and the Agency entered into a lease/leaseback transaction pursuant to which the Company (i) constructed and equipped an approximately 26,600± square foot expansion to its existing manufacturing facility situate on a parcel of real property consisting of approximately 2.59± acres located at 89 Mill Street in the Village and Town of Liberty, County of Sullivan, State of New York and identified on the tax map as Liberty Section 113, Block 3, Lot 1.2 (“2002 Land”) and related facilities leased to the Agency and leased back to the Company (“2002 Expansion Project” or the “2002 Facility”); and
WHEREAS, on or about December 1, 2003 Ideal Snacks, Inc. and the Agency entered into a lease/leaseback transaction pursuant to which the Company (i) constructed and equipped a two (2) story manufacturing warehouse building to consist of approximately 104,600± square feet situate on three (3) parcels of real property consisting of approximately 3.96± acres located at 89 Mill Street in the Village and Town of Liberty, County of Sullivan, State of New York and identified on the tax map as Liberty Section 113, Block 3, Lots 1.1, 2 and a portion of 5.1 (“2003 Land”) and related facilities leased to the Agency and leased back to the Company (“2003 Expansion Project” or the “2003 Facility”); and
WHEREAS, on or about December 15, 2004 Ideal Snacks, Inc. and the Agency amended the 2002 Expansion Project and the 2003 Expansion Project to (i) include certain additional parcels of real property used in connection with the 2002 Facility and the 2003 Facility namely those parcels identified on the tax map as Liberty Section 113, Block 2, Lot 2 and Section 113, Block 1, Lot 86 (“2004 Additional Land”); and (ii) update consistent with the Town of Liberty Assessor’s records parcel previously identified on the tax map as a portion of Liberty Section 113, Block 2, Lot 5.1 and Section 113, Block 3, Lot 2 to Section 113, Block 3, Lot 5.3 (“2004 Updated Land” and together with the 2002 Land, the 2003 Land and the 2004 Updated Land, the “Land”). The foregoing to be referred to herein as the “2004 Expansion Project” or the “2004 Facility”; and
WHEREAS, on or about June 10, 2005 the Agency (i) consented to a credit facility in an aggregate amount not to exceed $24,000,000.00 to the Company and AmSouth Bank; (ii) granted a mortgage tax abatement for recording a mortgage in an amount not to exceed $8,000,000.00; (iii) amended the 2002 Expansion Project, the 2003 Expansion Project and the 2004 Expansion Project; and (iii) authorized a consent to a change in ownership and control of 2002 Expansion Project, 2003 Expansion Project and 2004 Expansion Project from Ideal Snacks, Inc. to the Company (“2005 Project” or the “2005 Facility”); and
WHEREAS, on or about March 22, 2006, the Agency consented to the Company’s expansion whereby the Company presented an application (“Application”) to the Agency, a copy of which is on file at the office of the Agency, to include the (i) construction and equipping of an approximately 1,700± square foot corridor connecting the 2002 Facility and the 2003 Facility (“2006 Facility” or the “2006 Expansion Project”); and
WHEREAS, the Company contemplates another expansion and has presented an application to the Agency, a copy of which is on file at the office of the Agency, requesting that the Agency consider undertaking a project consisting of the (i) construction and equipping of an approximately 20,000± square foot two (2) story addition to its existing manufacturing Facility situate on three (3) parcels of real property consisting of approximately 6.9± acres located along 87-89 Mill Street in the Village and Town of Liberty, County of Sullivan, State of New York and identified on the tax map as Liberty Section 113, Block 3 and Lots 1.2, 1.3 and 5.1 (“2012 Updated Land”) and related facilities leased to the Agency and leased back to the Company (“2012 Facility” and together with the 2002 Facility, the 2003 Facility, the 2004 Facility, the 2005 Facility and the 2006 Facility, the “Facility”) or the “2012 Expansion Project” and together with the 2002 Expansion Project, the 2003 Expansion Project, the 2004 Expansion Project and the 2006 Expansion Project, the “Project”); and
WHEREAS, the total financial assistance being contemplated by the Agency is less than $100,000; and
WHEREAS, it is contemplated that the Agency will (i) designate the Company as its agent for the purpose of constructing and equipping the 2012 Project; (ii) negotiate and enter into a Third Omnibus Amendment to Project Documents and related documents with the Company; (iii) continue to hold a leasehold interest in the Land, the improvements and personal property thereon which constitute the Project; and (iv) provide financial assistance to the Company in the form of (a) sales tax exemption for purchases related to the construction of the 2006 Project and (b) a real property tax abatement on increased value resulting from the 2012 Project to the Land through the PILOT Agreement, as amended; 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 reviewed the underlying Short EAF relating to the subject project as contemplated by the Town Planning Board (“Planning Board”) and the negative declaration of the Planning Board, dated November 9, 2011; and
WHEREAS, the Agency has determined that the Facility is an Unlisted Action under SEQR; 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 2012 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 Sullivan County, New York by providing the contemplated financial assistance and undertaking the 2012 Project; and
WHEREAS, the Chief Executive Officer of the Agency has negotiated the Third Omnibus Amendment to Project Documents and related documents with the Company; and
WHEREAS, the Third Omnibus Amendment to Project Documents 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) The Application;
(B) A Cost/Benefit Analysis relating to the proposed financial assistance; and
(C) An EAF.
Section 2. Based upon the representations made by the Company to the Agency, the Agency hereby determines that:
(A) The Project consists of the construction and equipping of the 2012 Facility; and
(B) The Facility is an Unlisted Action under the SEQR. Based upon the review by the Agency of the EAF 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 not exceed the sum of ONE HUNDRED THOUSAND and 00/100 ($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) maintain a leasehold interest in the Land and to take title to the improvements and personal property constituting the 2012 Project; (ii) appoint the Company as its agent for purposes of constructing and equipping the Project, and (iii) lease the Land, improvements and personal property constituting the 2012 Project to the Company pursuant to the Lease Agreement and subject to the PILOT Agreement, as amended;
(C) The Agency has the authority to take the actions contemplated therein under the Act; and
(D) The action to be taken by the Agency will induce the Company to develop the 2012 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 a Third Omnibus Amendment to Project Documents and related documents in form and substance approved by the Chief Executive Officer, the Agency hereby authorizes the Company to proceed with the construction and equipping of the 2012 Project and hereby appoints the Company as the true and lawful agent of the Agency to construct and equip the 2012 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 and equipping of the 2012 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 and equipping of the 2012 Facility; (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 2012 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 2012 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 2012 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 and equip the Facility shall expire on April 27, 2012 if the Third Omnibus Amendment to Project Documents and related documents have not been executed and delivered.
Section 6. The Third Omnibus Amendment to Project Documents and related documents which were negotiated by the Chief Executive Officer, is hereby approved as to form and substance on condition that: (i) the payments under the Lease 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 Agreements are consistent with the Agency’s Uniform Tax Exemption Policy.
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 Third Omnibus Amendment to Project Documents 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
Raymond Walter [ ] Yes [ ] No [ ] Absent [ ] Abstain
Edward T. Sykes [ ] Yes [ ] No [ ] Absent [ ] Abstain
Charles Barbuti, Jr. [ ] Yes [ ] No [ ] Absent [ ] Abstain
Harris Alport [ ] Yes [ ] No [ ] Absent [ ] Abstain
Suzanne Loughlin [ ] Yes [ ] No [ ] Absent [ ] Abstain
Cindy L. Garlinghouse [ ] Yes [ ] No [ ] Absent [ ] Abstain
Steve White [ ] Yes [ ] No [ ] Absent [ ] Abstain
and therefore, the resolution was declared duly adopted.