EPR PROPERTIES RESOLUTION
(EPR Properties Project)
A special 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 March 19, 2013 at 9:30 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 [ √ ] [ ]
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, Chief Executive Officer
Jennifer Brylinski, Agency Executive Director
Walter F. Garigliano, Agency Counsel
The following resolution was duly offered by Sandy Shaddock, and seconded by Harold Gold, to wit:
Resolution No. 10 – 13
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RESOLUTION OF THE AGENCY (1) TAKING OFFICIAL ACTION TOWARDS THE ISSUANCE OF UP TO $152,000,000 PRINCIPAL AMOUNT REVENUE BONDS FOR THE BENEFIT OF EPR PROPERTIES (“COMPANY”) FOR THE PURPOSE OF FINANCING ALL OR QUALIFYING PORTIONS OF THE PROJECT DESCRIBED HEREIN; (2) DESCRIBING THE FORMS OF FINANCIAL ASSISTANCE BEING CONTEMPLATED BY THE AGENCY WITH RESPECT TO THE PROJECT; AND (3) APPOINTING THE COMPANY AS ITS AGENT TO UNDERTAKE THE 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 (hereinafter collectively called the “Act”), 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 in connection therewith to issue its revenue bonds, enter into straight lease transactions and provide other forms of financial assistance; and
WHEREAS, the Company for itself or on behalf of an entity or entities to be formed has submitted an application (“Application”) to the Agency, requesting that the Agency undertake a certain project, in one or more phases (“Project”), for the benefit of the Company consisting of: (i) the acquisition by the Agency a leasehold interest or other interest in certain property located at the southeast corner of Joyland Road and Thompsonville Road in the Town of Thompson, Sullivan County, State, being more particularly identified as tax map number 23-2-8 and containing in the aggregate approximately 50 acres (“Land”); (ii) the construction and equipping on the Land of an approximately 450,000 square-foot indoor water park resort hotel including, but not limited, to (a) an approximately four-story 400-unit hotel/resort, (b) an approximately 20,000 square-foot banquet room/conference center, (c) an approximately 85,000 square-foot indoor water park, (d) a split-level lobby core on an approximately 58,000 square-foot foot print, (e) a porte-cochere, (f) outdoor pools with concession areas and bars, (g) an outdoor pavilion stage adjacent to the conference center to be used for concerts and other events, and (h) related amenities (collectively, the “Improvements”), (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”); and (iv) paying certain costs and expenses incidental to the issuance of any Bonds (as hereinafter defined) (the costs associated with items (i) through (iv) above being hereinafter collectively referred to as the “Project Costs” with the portion of the Project Costs qualifying for use of tax exempt bond proceeds referred to as “Tax Exempt Eligible Project Costs”); and
WHEREAS, it is further contemplated that the Agency shall be authorized to finance all or a portion of the costs of the foregoing by the issuance of its taxable or tax exempt (to the extent permitted under the Internal Revenue Code of 1986, as amended (the “Code”)) industrial development revenue bonds in one or more issues or series in a maximum aggregate principal amount of $152,000,000 (collectively, the “Bonds”), and/or 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 or sub-ground lease Land from the Company and appoint the Company as its agent to undertake the Project and shall sublease the Facility back to the Company (the “Straight Lease Transaction”); and
WHEREAS, the Agency is contemplating providing financial assistance to the Company with respect to the Project (collectively, the “Financial Assistance”) in the form of: (1) the financing of the Project and certain necessary and incidental expenditures incurred in connection therewith through the issuance by the Agency of the Bonds in an amount not to exceed the lesser of the Tax Exempt Eligible Project Costs or $152,000,000, (2) an exemption from all 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, (3) the grant of one or more mortgage liens on the Agency’s interest in the Facility (the “Mortgages”) to secure the Bonds and/or any other indebtedness incurred by or for the benefit of the Company in connection with the Project, which Mortgages would be exempt from all mortgage recording taxes imposed in the State, and (4) a partial (or full) real property tax abatement structured under a Payment-In-Lieu-of-Tax Agreement, by and between the Company and the Agency, for the benefit of each municipality and school district having taxing jurisdiction over the Project (“PILOT Agreement”); and
WHEREAS, pursuant to Article 18-A of the General Municipal Law the Agency desires to adopt a resolution describing the Project and the financial assistance that the Agency is contemplating with respect to the Project; and
WHEREAS, pursuant to General Municipal Law Section 859-a, on March 12, 2013, at 2:00 p.m., local time, at the Town of Thompson Town Hall, 4052 Route 42, 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 (“Public Hearing”) whereat interested parties were provided a reasonable opportunity, both orally and in writing, to present their views. A copy of the minutes of the Public Hearing along with the Notice of the Public Hearing published and forwarded to the affected taxing jurisdictions at least ten (10) days prior to said Public Hearing are attached hereto as Exhibit A; and
WHEREAS, the Company reasonably expects that it will (1) pay or incur certain capital expenditures in connection with the Project prior to the issuance of the Bonds, (2) use funds from sources other than proceeds of the Bonds which are or will be available on a short-term basis to pay for such capital expenditures, and (3) reimburse itself for the use of such funds with proceeds of the Bonds; and
WHEREAS, by resolution adopted the date hereof, the Agency made certain findings in compliance with the State Environmental Quality Review Act, such resolution incorporated herein by reference.
NOW, THEREFORE, BE IT RESOLVED BY THE MEMBERS OF THE AGENCY AS FOLLOWS:
Section 1. Based upon the representations made by the Company to the Agency in the Company’s 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 (i) ground lease the Land and Existing Improvements from the Company and appoint the Company as its agent to construct the Facility, (ii) lease the Agency’s interest in the Land, Improvements and the Equipment to the Company pursuant to a lease agreement to be negotiated, and (iii) issue the Bonds to finance the Project Costs and/or enter into a Straight Lease Transaction with the Company; and
(C) The Agency has the authority to take the actions contemplated herein under the Act; and
(D) The actions to be taken by the Agency will induce the Company to undertake the Project, thereby increasing employment opportunities in Sullivan County, State, and otherwise furthering the purposes of the Agency as set forth in the Act; and
(E) The Project will not result in the removal of an industrial, or manufacturing plant of the Company or any other proposed occupant of the Project from one area of the State to another area of the State or result in the abandonment of one or more plants or facilities of the Company or any other proposed occupant of the Project located within the State; and the Agency hereby finds that, based on the Company’s Application, to the extent occupants are relocating from one facility to another, the Project is reasonably necessary to preserve the competitive position of the Project occupants in their respective industries; and
(F) The Project is likely to attract a significant number of visitors from outside the economic development region as established by Section 230 of the State Economic Development Law, in which the Project is located; and
(G) The Project constitutes a “horse racing facility”, a “recreation facility” and a commercial facility as contemplated by the Act.
Section 2. The proposed financial assistance being contemplated by the Agency includes (i) financing a portion of the costs of the Project by the issuance of the Bonds, in one or more series or issues, in an amount not to exceed the lesser of the Tax Exempt Eligible Project Costs or $152,000,000 and/or through a Straight Lease Transaction, (ii) an exemption from all 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 and equipping of the Facility, (iii) the grant of one or more Mortgage liens on the Agency’s interest in the Facility to secure the Bonds and/or any other indebtedness incurred by or for the benefit of the Company in connection with the Project, which Mortgages would be exempt from all mortgage recording taxes imposed in the State, and (iv) a partial (or full) real property tax abatement structured under a PILOT Agreement.
Section 3. Upon presentation of evidence of financing in a form acceptable to the Chairman, Vice Chairman, Chief Executive Officer and Counsel to the Agency and, subject to the Company executing the Agent Agreement in such form as approved by Counsel to the Agency and the delivery to the Agency of a binder, certificate or other evidence of liability insurance policy for the three respective portions of the Project, the Agency hereby authorizes the Company to proceed with the acquisition, construction and equipping of the respective phase of the Project and hereby appoints the Company as the true and lawful agent of the Agency: (i) to acquire, construct and equip the 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 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 the December 31st of the calendar year following the calendar year in which the Agent Agreement is executed (unless extended for good cause by the Chairman, Vice Chairman or Chief Executive Officer of the Agency) if the Straight Lease Transaction and/or Bond financing shall have not closed.
Section 4. 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.
Section 5. The Company is hereby authorized to conduct such environmental, engineering, economic, feasibility and other studies and preliminary planning and budgetary processes necessary or convenient to enable the Agency to make its final determination whether to approve the Financial Assistance, and the Company is further authorized to advance such funds as may be necessary for such purpose, subject, to the extent permitted by law, to reimbursement from the proceeds of the sale of the Bonds, if the Bonds are issued.
Section 6. Counsel to the Agency (Garigliano Law Offices, LLP) and Bond Counsel/Transaction Counsel to the Agency (Harris Beach PLLC) are hereby authorized to work with counsel to the Company and others to prepare for submission to the Agency, all documents necessary to effect the authorization, issuance and sale of the Bonds and reimbursement of the cost of all such work prior to the date hereof is hereby authorized to the extent permitted by the Code.
Section 7. This Resolution shall constitute the adoption of “official intent” (within the meaning of the United States Treasury Regulations Section 1.150-2(d) with respect to issuance of the Bonds and the original expenditures which are reasonably expected to be reimbursed from the proceeds of the Bonds.
Section 8. The Chairman, Vice Chairman, Chief Executive Officer and/or Executive Director of the Agency are hereby authorized and directed to distribute copies of this Resolution to the Company and to do such further things or perform such acts as may be necessary or convenient to implement the provisions of this Resolution.
Section 9. This Resolution 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 [ √ ] 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 [ ] Abstain
Harris Alport [ √ ] Yes [ ] No [ ] Absent [ ] Abstain
Steve White [ √ ] Yes [ ] No [ ] Absent [ ] Abstain
Sandy Shaddock [ √ ] Yes [ ] No [ ] Absent [ ] Abstain
Sean Rieber [ √ ] 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 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 19th day of March, 2013 at 9:30 a.m. at the SullivanCountyGovernmentCenter, 100 North Street, Village of Monticello, New York12701, 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 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 [ ] Abstain
Harris Alport [ √ ] Yes [ ] No [ ] Absent [ ] 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.
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 19th day of March, 2013. ____________________________________
Secretary
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