SECTION 1. Findings. The Agency has reviewed the application to determine compliance with the requirements of the Act and based on the representations of the Company to the Agency in said application and elsewhere, the Agency hereby makes the following findings and determinations with respect to the Project:
(A) The Agency has been vested with all powers necessary and convenient to carry out and effectuate the purposes of the Act and to exercise all powers granted to it under the Act;
(B) The Project constitutes a “project”, as that quoted term is defined in the Act;
(C) The acquisition, construction and installation of the Facility and the lease of the Facility to the Company (i) will promote and maintain the job opportunities, health, general prosperity and economic welfare of the citizens of the State of New York and the County of Fulton, and (ii) will result in the removal of an industrial or manufacturing plant of the Company from one area of the State to another area of the State; however, is reasonably necessary to maintain the competitive position of the Company in the industry and will enable the Company to maintain and create employment opportunities in the County of Fulton; and (iii) will lead to the retention of at least one hundred (100) full time equivalent job opportunities and will lead to the creation of at least thirty two (32) full time equivalent job opportunities within the next two (2) years for the inhabitants of the County of Fulton and in the State of New York;
(D) The location of the site of the Project is acceptable to the Agency;
(E) The Facility is not known by the Agency to be in material violation of the local zoning laws and planning regulations of the City of Johnstown and all regional and local land use plans for the area in which the Facility shall be located;
(F) The Facility and the operations of the Company are not known by the Agency to cause or result in the violation of the health, labor, environmental or other laws of the United States of America, the State of New York, the County of Fulton or the City of Johnstown; and
(G) The Project consists of maintenance and repair of an existing structure and the replacement and rehabilitation of a structure, in kind, on the same site and is considered a Type II Action pursuant to 6 NYCRR §§ 617.5(c)(1) and (2) and, therefore, no further environmental review is required; and
(H) The completion of the Project will not result in the removal of a commercial, industrial or manufacturing plant of the Company from one area of the State of New York to another area of the State of New York, as the Company’s lease at its current location will not be renewed. Further, the completion of the Project will not result in any loss of jobs and all existing jobs will be retained nor will the completion of the Project result in the abandonment of one or more plants or facilities of the Company or any other proposed occupant of the Facility located within the State of New York; and
(I) The Agency further determines that the Project includes the following key aspects: (i) the Project consists of a private investment estimate at $7,600,000; (ii) ___________________________________________________________________; and
(J) The Agency hereby finds that the for this Project the private investment, as more specifically described in subsection (I) herein, and the retention and creation of jobs, as more specifically described in subsection (C) herein, shall be considered Material Terms for the purposes of monitoring in accordance with the policies and procedures of the Agency.
SECTION 2. Description of Project.
Subject to the conditions set forth herein and in the Lease Agreement to be entered into with the Agency, the Agency shall:
(1) acquire an interest in, construct and install the Project Facility; and
(2) lease the Project Facility to STAG Johnstown 2, LLC to be sublet to the Company pursuant to an agreement or agreements whereby the Company will obligate itself, among other things, to undertake the Project on behalf of the Agency.
SECTION 3. Company Appointed Agent of Agency.
(A) The Company is hereby appointed the true and lawful agent of the Agency to:
(1) construct and install the Project Facility;
(2) make, execute, acknowledge, and deliver all contracts, orders, receipts, instructions, and writings needed to complete the Project; and
(3) do all other things requisite and proper for the completion of the Project.
(B) The Company is authorized to proceed with the acquisition, construction and installation of the Project Facility, subject to receiving any and all appropriate municipal approvals needed prior to commencement of construction, and to advance such funds as may be necessary to accomplish these goals. The Company shall complete the Project Facility within eighteen (18) months from the commencement thereof. The failure of the Company to complete the project within eighteen (18) months shall be considered a “significant change in the use of the facility” as set forth in the Agency’s Recapture of Benefits Policy, as amended from time to time.
(C) The Company is also authorized to appoint third party agents to undertake the Project and thereby make available to such third party agents an exemption from New York State sales and use taxes in connection with undertaking the Project. This provision is subject to the Company entering into an Agent Agreement with the Agency.
(D) The Agency hereby approves of the execution of an Agent Agreement authorizing exemptions from the sales and use taxes for purchases and rentals related to the undertaking of the project in an amount not to exceed Seven Hundred Twenty Four Thousand Eight Hundred Dollars ($724,800.00), based on eligible project costs of Nine Million Sixty Thousand Dollars ($9,060,000.00), which exemption will expire on May 31, 2018.
SECTION 4. §144 Election. Not Applicable.
SECTION 5. Insurance. The Company shall deliver to the Agency a certificate of insurance, complying with the requirements as required by the Agency, and indicating that:
- The Company maintains insurance with respect to the Facility providing the coverage against the risks and for such amounts as are customarily insured against by businesses of like size and type, paying, as the same become due and payable, all premiums with respect thereto, and mandated by the Agency, including, but not necessarily limited to the following:
- Insurance protecting the interests of the Company and the Agency against loss or damage to the Project Facility by fire, lightning and other casualties normally insured against with a uniform standard extended coverage endorsement, such insurance at all times to be in an amount not less than the total cash replacement value of the Project Facility, as determined by a recognized appraiser or insurer selected by the Company; provided, however, that the Company may, insure all or a portion of the Project Facility under a blanket insurance policy or policies covering not only the Project Facility or portions thereof but other property. The parties agree that for purposes of this Project the Company will be responsible for providing builders risk insurance.
- Workers’ compensation insurance, disability benefits insurance, and each other form of insurance which the Company is required by law to provide, covering loss resulting from injury, sickness, disability or death of employees of the Company who are located at or assigned to the Project Facility and for all contractors and subcontracts.
- Insurance protecting the Company and the Agency against loss or losses from liabilities imposed by law or assumed in any written contract and arising from personal injury and death or damage to the Property of others caused by any accident or occurrence, with a single combined limit of not less than $2,000,000.00 per accident or occurrence on account of personal injury, including death resulting therefrom, and damage to the Property of others, excluding liability imposed upon the Company by any applicable workers’ compensation law; and a blanket excess liability policy in the amount not less than $5,000,000.00 protecting the Company and the Agency against any loss or liability or damage for personal injury, death or Property damage.
- If applicable and if it is determined that the Project Facility is located within an area identified by the Secretary of Housing and Urban Development as having special flood hazards, insurance against loss by floods in an amount not less than $1,000,000.00 or to the maximum limit of coverage made available, whichever is less.
- Other insurance coverage required by any Governmental Authority in connection with any Requirement.
- all policies evidencing such insurance,
- name the Company and the Agency as insureds, as their interests may appear, and
- provide for at least thirty (30) days’ written notice to the Agency prior to cancellation, lapse, reduction in policy limits or material change in coverage thereof.
SECTION 6. Document Preparation. Counsel to the Agency is hereby authorized and directed to cooperate with counsel to the Company, as well as all other necessary parties, in order to prepare the documents needed to undertake the Project.
SECTION 7. Administrative and Legal Fees. The Company will pay all costs incurred by the Agency, including but not limited to attorney’s fees, which arise out of the Company’s application for Financial Assistance, whether or not such assistance is ultimately issued. Agency’s attorney’s fees will be calculated at a time rate of $275.00 per hour for attorney’s time and $105.00 per hour for senior legal assistant’s time, plus disbursements. Upon closing of all of the Project documents, the Company will pay to the Agency an administrative fee (the “Administrative Fee”) of $22,650.00 based upon an estimated Project cost of $9,060,000.00 pursuant to the schedule set forth below and contained within the Company’s Application for Financial Assistance:
0.25% of project’s cost subject to Sales Tax
Following the completion of the Project Facility, the Company shall confirm, in writing, the actual Project cost. In the event that the total Project cost exceeds the estimate provided herein, the Agency may require the payment of the difference that would otherwise be due pursuant to the above-schedule.
SECTION 8. Approval of Company’s Financing Documents. The substance and form of the Underlying Lease, the Lease Agreement, Agent Agreement and accompanying NYS forms, and all other certificates or documents to be delivered or executed and delivered by the Agency (hereinafter collectively referred to as the “Closing Documents”) are hereby approved, subject to approval as to content by the Chairman and the Agency’s counsel.
SECTION 9. Authorized Representatives. (A) The Chairman or the Chief Executive Officer is hereby authorized to execute and deliver the Closing Documents. If required, the signature of the Chairman or Chief Executive Officer shall be attested by the Secretary or Treasurer of the Agency (or Agency Counsel, in the absence of a Secretary/Treasurer) who, if required, shall affix a facsimile of the Agency’s seal to documents required to be under seal. (B) On the advice of Counsel to the Agency, the Chairman or Chief Executive Officer shall make such reasonable changes to the Closing Documents as shall be required to promote and protect the Agency’s interests with respect to the Project. All such changes shall be made prior to the closing.
SECTION 10. Further Assurance. The officers, employees and agents of the Agency are hereby authorized and directed to do all acts required by the provisions of the Closing Documents, and to execute and deliver all additional certificates, instruments and documents and to pay all fees, charges and expenses and do all other acts that may be necessary or proper to effectuate the purposes of this resolution. None of the members, officers, directors, employees or agents (except the Company) of the Agency, shall be personally liable under the other Closing Documents. The Chairman of the Agency is authorized to take such further action as shall be necessary to give effect to and implement this resolution.
SECTION 11. Filing of Documents. Originals of all Closing Documents for the Project shall be filed and maintained in the office of the Agency.
SECTION 12. Public Inspection. A copy of this resolution and the Closing Documents shall be placed on file in the office of the Agency, where they shall be available for public inspection during business hours.
SECTION 13. Effective Date. This resolution shall take effect immediately.