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Village of Islandia Taxpayer Relief Agreement
Village of Islandia Taxpayer Relief Agreement
Village of Islandia Taxpayer Relief Agreement
RECITALS
WHEREAS, DNC Gaming Management in Suffolk, LLC, Owner and New Owner are
parties to that certain Agreement of Purchase and Sale, dated of even date herewith, as may be
amended, supplemented or otherwise modified from time to time (the “Purchase Agreement”);
WHEREAS, pursuant to the Purchase Agreement, New Owner will acquire 3635
Expressway Drive North, Islandia, New York (the “Premises”), Jake’s 58 Casino Hotel located
on the Premises (“Jake’s 58”), and substantially all of the assets and properties of Owner related
to the operation of Jake’s 58 (the “Sale Transaction”);
WHEREAS, the Village issued a special use gaming and hotel permit to the Owner on or
about November 16, 2016 in order to commence gaming and hospitality operations at Jake’s 58;
WHEREAS, Jake’s 58 opened for operation on March 22, 2017 and has been operated
continuously without change since said opening;
WHEREAS, the zoning for the Premises was modified by the Village of Islandia Local
Law No. 3 on November 28, 2017, which was filed with the New York Secretary of State on
February 29, 2018 (“Change in Zoning Law”);
WHEREAS, the Change in Zoning Law describes all contemplated activities at Jake’s 58
such that the zoning for Jake’s 58 are as of right and supersede the necessity for the Hotel/Gaming
Permit;
WHEREAS, the Village issued a Certificate of Occupancy for the Premises for the New
Owner dated May 6, 2021;
WHEREAS, in connection with the Sale Transaction, Owner desires to transfer, assign and
convey all of Owner’s rights, titles, obligations, liabilities and interests in and under the Taxpayer
Relief Agreement to New Owner, and New Owner desires to assume all of Owner’s rights, titles,
obligations, liabilities and interests in and under the Taxpayer Relief Agreement, as amended by
this Amendment No. 1;
WHEREAS, pursuant to Paragraph 16 of the Taxpayer Relief Agreement, Owner may not
assign the Taxpayer Relief Agreement to a Non-Affiliate without the consent of the Village, which
consent shall not be unreasonably withheld;
WHEREAS, Owner and the Village stipulated in Paragraph 15 of the Taxpayer Relief
Agreement that in no case for purposes of the Taxpayer Relief Agreement will New Owner be
considered to be an Affiliate of Owner;
WHEREAS, Paragraph 18 of the Taxpayer Relief Agreement provides that the Taxpayer
Relief Agreement may be transferred in connection with a sale of the Premises, subject to Owner
obtaining the consent of the Village, which consent shall not be unreasonably withheld;
WHEREAS, in connection with the Sale Transaction and the assignment and assumption
of the Taxpayer Relief Agreement contemplated by that certain letter agreement dated of even date
herewith entered into by the Owner, New Owner and the Village, a copy of which is attached
hereto as Exhibit A (the “Letter Agreement”), the Village consented to Owner’s assignment of
the Taxpayer Relief Agreement to New Owner, subject to the consummation of the Sale
Transaction and the full execution of this Amendment No. 1, and agreed that the Taxpayer Relief
Agreement, as amended by this Amendment No. 1, will continue in full force and effect with
Suffolk Regional Off-Track Betting Corporation continuing as the “Owner” thereof;
WHEREAS, the Village and the New Owner desire to memorialize certain amendments to
the Taxpayer Relief Agreement, as provided herein; and
NOW, THEREFORE, in consideration of the mutual covenants, terms and conditions set
out herein, and for other good and valuable consideration, the receipt and sufficiency of which are
hereby acknowledged, and subject to the consummation of the Sale Transaction and the full
execution of the Letter Agreement, the parties agree as follows:
1. Recitals. The forgoing Recitals are hereby incorporated as material terms of this
Agreement.
(a) The defined term “Hotel/Gaming Permit” shall be amended and replaced in all
instances with the term “Certificate of Occupancy”.
(b) Paragraph 1 of the Taxpayer Relief Agreement is hereby amended and restated in
its entirety to read as follows:
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State of New York that permits it to own or operate a video gaming facility or
casino gaming facility at the Premises; provided, however, an extended cessation
of operations of the Hotel/Gaming Facility due to a Force Majeure Event (defined
below) shall not be deemed a violation of this provision; provided, further, a Force
Majeure Event shall not excuse the Owner from any payment obligations to the
Village under this Agreement. After the conclusion of the Force Majeure Event,
the Owner shall use commercially reasonable efforts to re-open Jake’s 58 as soon
as reasonably practicable.
“Force Majeure Event” means any event or circumstance outside the control of the
Owner which forces the Owner to temporarily cease operations of a video gaming
facility or casino gaming facility at the Premises, including, but not limited to any
restrictive government or judicial orders, decrees or mandates, national or regional
state of emergency, pandemic, epidemic, viral or other disease outbreak, including,
but not limited to, novel coronavirus, SARS-CoV-2 or COVID-19 (and all related
and additional strains and sequences) and any nation-wide health pandemic in the
United States or regional health issue.
(c) Paragraph 2 of the Taxpayer Relief Agreement is hereby amended and restated in
its entirety to read as follows:
(d) Paragraph 4 of the Taxpayer Relief Agreement is hereby amended and restated in
its entirety to read as follows:
The Owner and the Village Mayor and/or the Deputy Mayor, the Code Enforcement
Officer and Fire Marshall or other appropriate representative shall meet every two
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years of the term of this Agreement to review the compliance of the Owner with
the applicable provisions of the Village Code, the NYS Uniform Fire Prevention
and Building Code (“Building Code”) and the terms and conditions of this
Agreement. At each such meeting, any complaints received about the Owner or the
Premises may be discussed.
(e) Paragraph 10 of the Taxpayer Relief Agreement is hereby amended and restated in
its entirety to read as follows:
Notwithstanding this Agreement, the Village shall maintain a fair assessment of the
Premises and the Owner shall pay all real property taxes assessed on the Premises
(the “Real Property Taxes”). The Parties agree that the Owner shall not file a tax
certiorari against the assessment of the Village of Islandia; provided, that such
assessment of the Premises shall not increase by more than 2% per annum over the
prior year’s assessment except in the case of a Village-wide re-assessment or if
such increase is due to a change in conditions at the Premises such as any addition,
improvement, construction and/or renovation. The Owner shall retain the right to
file a tax certiorari against other taxing jurisdictions to seek reduction of the
assessment and/or real property taxes on the Premises pursuant to applicable
statutes and regulations. Notwithstanding the foregoing, in the event that the
Owner is a public benefit corporation or other entity that is exempt from the
obligation to pay the real property taxes assessed on the Premises, the Owner shall
be obligated to make annual payments in lieu of taxes to the Village in the amount
of taxes that would be due based on the Village’s fair assessment of the Premises if
the Owner had not been an entity that is exempt from the obligation to pay real
property taxes assessed on the Premises the (“PILOT”).
(f) Paragraph 13 of the Taxpayer Relief Agreement is hereby amended and restated in
its entirety to read as follows:
So long as the Certificate of Occupancy and the license to operate a VLT Facility
or casino at the Premises, is in full force and effect and the Owner owns the
Premises or the Owner is operating a VLT Facility or casino at the Premises, the
Owner shall make a Taxpayer Relief Payment of Two-Million Two-Hundred Fifty
Thousand Dollars ($2,250,000.00) on January 1st of each year during the Term as
such amount may be increased pursuant to Paragraph 30 below.
(g) Paragraph 15 of the Taxpayer Relief Agreement is hereby amended by deleting the
following clause at the very end: “; provided, however, that, for purposes of this
Agreement in no case will Suffolk Regional Off-Track Betting Corporation be
considered an Affiliate of the Owner.”
(h) The last sentence of Paragraph 16 of the Taxpayer Relief Agreement is hereby
amended and restated in its entirety to read as follows:
Upon receiving the Village’s consent to assign this Agreement and the Certificate
of Occupancy to a Non-Affiliate and the assumption by such Non-Affiliate of the
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Owner’s obligations under this Agreement, the Owner shall be released from all
obligations under this Agreement and the Certificate of Occupancy arising after the
effective date of such assignment.
(i) Paragraph 25 of the Taxpayer Relief Agreement is hereby amended and restated in
its entirety to read as follows:
If to Owner:
Suffolk Regional Off-Track Betting Corporation
425 Oser Avenue, Suite 2
Hauppauge, NY 11788
Attention of: Comptroller
Telephone No.: 631-853-1000
E-mail: Gazesc@Suffolkotb.com
If to Village:
Village of Islandia Board of Trustees
Attn: Mayor
1100 Old Nichols Road
Islandia, New York 11947
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Joseph W. Prokop PLLC
225 Broadhollow Road Suite 301E
Melville, NY 11747
Any such addresses for the giving of notices may be changed by either Party by
given written notice as provided above to the other Party. Notice given by counsel
to the Party shall be effective as notice from such Party.
Parking Meters. In the event the Owner provides written notice to the Village
certifying the completion of the expansion of the Hotel/Gaming Facility and the
related renovation and construction of the Hotel/Gaming Facility (the “Expansion
Project”), the Village shall remove the parking meters located on New Bedford
Street, if needed, in order to widen the ingress and egress to the Premises. Following
the removal of the parking meters, the Owner shall make an annual payment to the
Village of One Hundred and Twenty-Five Thousand Dollars ($125,000) (the
“Parking Meter Payment”) on January 1st of each year commencing with the year
in which the Expansion Project is open to the public through the completion of the
Term. The Parking Meter Payment shall be prorated for the first year from the date
of removal of the parking meters and paid to the Village within thirty (30) days of
removal.
VLT Support. The Village shall, at the Owner’s request, support Owner’s effort to
obtain authorization for the Expansion Project by sending letters of support for
Owner’s effort to obtain such authorization; provided, further, that the Owner shall
use good faith efforts to push for authorization to maximize the number of video
lottery terminals supported by the demographics surrounding the Premises.
Increase in Taxpayer Relief Payment. In the event New York State authorizes an
increase of authorized video lottery terminals by an additional 1,000 video lottery
terminals, then the Taxpayer Relief Payment shall be increased to Four Million
Two Hundred Fifty Thousand Dollars ($4,250,000) per annum commencing on the
date on which 2,000 video lottery terminals at the Premises are open to the public
for play; provided, that if less than 2,000 total video lottery terminals are
authorized, such increased Taxpayer Relief Payment shall be reduced by an amount
equal to $2,000 per video lottery terminal not authorized (i.e., if only 750 additional
video lottery terminals are authorized, the Taxpayer Relief Payment shall be
increased to Three Million Seven Hundred Fifty Thousand Dollars ($3,750,000));
provided, further, that upon any such authorization, the increased Taxpayer Relief
Payment shall become payable per increased video lottery terminals as such video
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lottery terminals are open to the public for play for the first year on a pro rated basis
per video lottery terminal (i.e., $2,000 per video lottery terminal) and for the
amount of time remaining in such year.
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The “Termination Payment” means the lesser of (i) the amounts due for the
Taxpayer Relief Payments for the remaining Term assuming the Agreement had
not been terminated under this Paragraph 31 or (ii) five times the Taxpayer Relief
Payment then in effect; provided, that the Termination Payment shall be zero if the
cause of the Early Termination Notice is directly due to the Village’s breach of this
Agreement (except where such breach was necessitated or a result of a breach or
default of the Owner).
Costs and Expenses. The Owner shall promptly reimburse the Village for all
reasonable and documented out-of-pocket costs and expenses (including reasonable
and documented attorneys’ fees) incurred by the Village in connection with any
proposed assignment or transfer of this Agreement by the Owner in accordance
with Paragraph 16 and/or Paragraph 18 of this Agreement or any amendment,
modification or change to this Agreement agreed to by the Village and the Owner
pursuant to Paragraph 23 of this Agreement.
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Required Lender Disclosure of the Agreement. The Owner shall provide a copy of
this Agreement to any lender of Owner prior to entering into any financing with
such lender.
3. Representations and Warranties of New Owner. New Owner hereby represents and
warrants as of the Effective Date that New Owner is not subject to any contract, agreement,
instrument or other arrangement, including the Credit Agreement (defined below) or any other
agreement for borrowed money or any related collateral, guarantee and security documents entered
into by New Owner from time to time, that restricts, limits or otherwise prevents the ability of New
Owner to pay the Taxpayer Relief Payments, Parking Meter Payment and the Real Property Taxes
(or PILOT, as applicable) in full during the Term.
6. Miscellaneous.
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hereby and thereby; provided that New Owner shall reimburse the Village on the date hereof for
its reasonable and documented out-of-pocket costs and expenses (including documented and
reasonable attorneys’ fees) (the “Village Expenses”) up to $25,000.
(b) Limited Effect. Except as expressly amended and modified herein, the
Taxpayer Relief Agreement is unchanged and shall continue in full force and effect in accordance
with its terms, and nothing contained in this Amendment No. 1 is intended to affect the parties’
existing or continuing rights or obligations under the Taxpayer Relief Agreement, except as
expressly modified hereby and except for the assignment and assumption contemplated hereby
and by the Letter Agreement.
(c) No Waiver. Except as explicitly set forth herein or in the Letter Agreement,
nothing contained herein shall be deemed or construed to modify, waive, impair or affect any of
the covenants, agreements, terms, provisions or conditions contained in the Taxpayer Relief
Agreement.
(d) Further Assurances. The parties hereto shall execute and deliver any and all
additional documents, certificates, agreements and instruments and take such other actions as may
be necessary or desirable in order to effectuate the transactions contemplated hereby.
(e) Governing Law. This Amendment No. 1 and any disputes hereunder shall
be governed and interpreted by the laws of the State of New York, without regard to the principles
of conflicts of law provisions that would might otherwise require the application of the laws of
another state.
(f) Severability. In the event that any one or more of the provisions, or parts
thereof, contained in this Amendment No. 1 shall for any reason be held to be unenforceable in
any respect by a court of competent jurisdiction or arbitrator, such unenforceability shall not affect
any other provisions, or parts thereof, but shall then be construed as if such unenforceable
provision, or part thereof, had never been contained herein.
(g) Assignment; Binding Effect. No party hereto may assign its rights or
delegate its obligations under this Amendment No. 1 without the prior written consent of the other
parties. This Amendment No. 1 shall by binding on and inure to the benefit of the parties to it, and
their respective successors-in-interest and permitted assigns.
(h) Headings. Section headings herein are included herein for convenience
of reference only and shall not constitute a part hereof for any other purpose and shall not affect
or be utilized in construing or interpreting this Amendment No. 1.
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IN WITNESS WHEREOF, New Owner and the Village have caused this Amendment
No. 1 to be executed as of the date first above written.
NEW OWNER:
SUFFOL
BETT
VILLAGE:
INCORPORATED VIL
ISLANDIA
By:--'~;&.::~~_.,,::.='--:::::::_---
Name: Allan M. Dorman
Title: Mayor