SITE DEVELOPMENT AGREEMENT

 

                        This Site Development Agreement is entered into on this ___ day of ______________, 2007 (the “Agreement”), by, between and among the Village of Corinth, a municipal subdivision of the State of New York with offices at 260 Main Street, Corinth, New York 12822 (the “Village”), the Town of Corinth, a municipal subdivision of the State of New York with offices at 600 Palmer Avenue, Corinth, New York 12822 (the “Town”) and Philmet Capital Group, LLC, a foreign limited liability company organized under the laws of the State of Delaware and authorized to do business in the State of New York with offices for the transaction of business at  295 Madison Ave, New York, New York, 10017 (“Philmet”).

 

WITNESSETH:

 

                        WHEREAS, Philmet is the owner of approximately 286 acres of real property located within the Town and Village known as the Corinth Mills Industrial Park, which real property is more particularly bounded and described on the legal descriptions attached hereto as Schedule  “A” (the “Site”); and

 

                        WHEREAS, certain portions of the Site are located wholly within the geographical confines of the Village (the “Village Portion”) and other portions of the Site are located wholly within the geographical confines of the Town (the “Town Portion”); and

 

                        WHEREAS, the Village has land use and zoning approval and related municipal authority, regulatory and police powers over the Village Portion of the Site; and

 

                        WHEREAS, the Town has land use and zoning approval and related municipal authority, regulatory and police powers over the Town Portion of the Site; and

 

                        WHEREAS, both the Village and the Town have enacted Waste Disposal Facilities Moratoria, prohibiting, inter alia, the review of any application, the holding of any public hearing, and the issuance of any final decisions, including building permits, which would in any way authorize the installation, construction or use of a Waste Disposal Facility; and

 

                        WHEREAS, the Village has proposed certain amendments to its local zoning code, including but not limited to the addition of Section 138-18A entitled “Solid, Liquid and/or Gaseous Waste” and addition of a section entitled “Special Use Permits,” as well as amendments to Section 138-4.B.7 entitled “Industrial,” and the addition of definitions to Section 138-37; and

 

                        WHEREAS, on November 15, 2006, Resolution No. 81 was introduced and adopted by the Village’s Board of Trustees (the “Condemnation Resolution”), which Resolution set forth certain concerns of the Village with regard to development of the Site, and which Resolution provided that the Village would, among other things, undertake all appropriate and necessary action to acquire a certain portion of the Village Portion of the Site pursuant to the provisions of New York’s Eminent Domain Procedures Law (Exhibit “A”); and

 

                        WHEREAS, the Village, Town and Philmet are all desirous of promoting economic growth and development within the Village and Town consistent with the public interest and benefit; and

                       

                        WHEREAS, the Village, Town and Philmet are all desirous of having the Site redeveloped and restored to environmentally responsible and productive commercial use; and

 

                        WHEREAS, Philmet has proposed certain land uses with respect to the Site, which uses have been represented to be the development and operation of a modernized, clean, state-of-the-art manufacturing facility which will produce plastic consumer goods (the “Facility”), which Facility will be powered by the existing nearby natural gas power plant on the Site (the “Power Plant”), which Power Plant will be upgraded and modernized to run on a safe and environmentally responsible energy source that is clean, nonpolluting, and approved by the New York State Department of Environmental Conservation (“Green Energy Source”), and will potentially supply surplus energy to the electrical grid; and

 

                        WHEREAS, there is presently located on the Town Portion of the Site an existing, state-of-the-art landfill historically used for paper sludge generated on-site, estimated to have approximately fifty (50) years of additional active life (the “Landfill”); and

 

                        WHEREAS, the Village and Town are desirous of reaching a mutually acceptable agreement with Philmet with respect to its development plans; and

 

                        WHEREAS, the Village, Town and Philmet, through their respective representatives have worked cooperatively in the negotiation and drafting of this Agreement; and

 

                        WHEREAS, the execution of this Agreement and the Declaration (as defined below) by Philmet has been authorized by all necessary corporate authorities, does not violate any of Philmet’s organizational documents, does not violate any covenants or provisions of any mortgages, loan documents, leases or other agreements to which Philmet is a party and is otherwise authorized by all of the members of Philmet; and

 

                        WHEREAS, the execution of this Agreement by the Village has been duly authorized by the Village Board; and

 

                        WHEREAS, the execution of this Agreement by the Town has been duly authorized by the Town Board.

 

                        NOW, THEREFORE, in consideration of the mutual covenants and promises contained herein, and for other good and valuable consideration, the receipt and adequacy of which is hereby acknowledged, it is hereby agreed as follows:

           

ARTICLE I

 

THE PROPOSED REDEVELOPMENT

 

1.1.            Proposed Project. 

 

Subject to the terms and conditions herein, Philmet intends to develop and construct:

 

(a)         On the Village Portion of the Site in accordance with a site plan subject to approval by the Village as hereinafter provided, a development which shall include, but shall not be limited to: (i) construction of an approximately 112,000 square foot building for a manufacturing Facility, which will produce plastic consumer goods such as plastic cups, plates, trays, etc. for the food service industry; and (ii) upgrading, expansion and modernization of the existing Power Plant for the use of wood and/or traditional energy sources, such as natural gas or coal, to supply clean and environmentally responsible energy to serve the Facility and potentially supply surplus energy to the electrical grid. 

 

(b)               On the Town Portion of the Site in accordance with a site plan subject to approval by the Town, the operation of the Landfill for the deposit of any and all industrial waste, as that term is defined by Part 360 of the DEC Solid Waste Management Regulations, generated from any duly approved industrial use(s) on the Site.  The use of the Landfill shall be limited by Philmet’s Permit issued by the New York State Department of Environmental Conservation (the “DEC”) pursuant to Part 360 of the DEC’s Solid Waste Management Regulations (the “DEC Landfill Permit”), subject to said DEC Landfill Permit being transferred to Philmet by the DEC.  Philmet reserves to the right to seek periodic modifications of said DEC Permit as may be required under the applicable laws and regulations.  (The Facility, Power Plant and Landfill shall hereinafter collectively be referred to as the “Project”).

 

1.2.            Philmet’s Applications.  Philmet shall submit to the Village and Town within _____ (__) days after execution of this Agreement: (i) application(s) for any and all land use approvals and/or zoning text amendments necessary to accomplish the Project; and (ii) a Full Environmental Assessment Form (“EAF”) pursuant to the State Environmental Quality Review Act (“SEQRA”) for the Project.

 

1.3.            Proposal for Change of Green Energy Source.  The parties acknowledge that due to changes in energy technology, this Agreement is intended to provide flexibility for utilizing a Green Energy Source to generate power, and is not intended to preclude traditional sources such as natural gas and coal.  In the event that Philmet or its predecessor seeks to change the Green Energy Source, such change shall be governed by the following procedure:

 

(a)                Philmet shall submit to the Village Board for its approval a proposal to use a Green Energy Source (the “Source Proposal”), and shall demonstrate through empirical evidence that such source would not harm the public health, safety and welfare.  Upon such demonstration, subject to review by the Village’s technical consultant(s) as set forth herein and any contrary empirical evidence, the Village Board shall render a determination on the Source Proposal without undue delay.  Approval of the Source Proposal shall not be arbitrarily or capriciously withheld.

 

(b)               Philmet shall be responsible for and pay to the Village all technical consultant fees incurred by the Village, limited to the review of the Source Proposal.

 

(c)                It is understood that the Village may hold a public hearing to receive public comment in connection with the Source Proposal, which hearing shall not remain open longer than thirty (30) days absent the consent of the applicant, which consent shall not be unreasonably withheld.

 

(d)               In the event that waste generated from the Power Plant will be deposited in the Landfill, Philmet acknowledges that the approval of any Source Proposal shall be conditioned upon Philmet obtaining any necessary approvals from the Town pursuant to the Local Law Amending the Corinth Town Code Relating to the Disposal of Waste, adopted _________, 2007, as well as a modification of its DEC Landfill Permit.  The Village may issue a conditional approval pending such Town approval and/or modification.

 

(e)                Philmet agrees not to submit a Source Proposal to the Village until such time as the Facility is constructed, and operation of the Facility commences.

 

1.4.            Cooperation by Village and Town.  The Village and the Town shall, to the extent permitted by law, conduct in good faith all procedures necessary pertaining to the review of applications or requests made by Philmet for actions, permits and/or approvals which are within the jurisdiction of the Village, Town, or any applicable municipal agencies, boards and departments, however, such actions, permits and/or approvals shall be subject to any required compliance with the provisions of SEQRA.  The Village and Town shall in good faith cooperate with Philmet to the extent permitted by law in any manner necessary in furtherance of the Project. 

 

                        1.5.            Environmental Quality Review. 

 

(a)         Philmet shall, at its sole cost and expense, undertake all studies and applications required in order for the Village and/or Town to comply with SEQRA and any other applicable land use laws, rules, regulations and/or proceedings with respect to the Project. 

 

(b)         The parties acknowledge that the proposed Project is intended to provide a basis for further planning and meaningful environmental review, and cannot be considered definitive prior to, and may undergo significant revision and renegotiation on the basis of, environmental findings (including possible mitigation measures) hereafter made by a designated lead agency as part of the SEQRA process. 

 

(c)         Philmet acknowledges that neither the Village nor the Town has undertaken any commitment to approve or implement the Project, and that neither has the lawful authority to do so or to bind the Village or Town Planning Boards of Zoning Boards of Appeal or Code Enforcement Officers to any future decisions. 

 

 

(e)         The Village and Town shall in good faith promptly review any application submitted by Philmet in connection with the Project, including, but not limited to, the issuance of a completeness determination, the holding of public hearings required pursuant to SEQRA, and the issuance of a determination of environmental significance.

 

(f)          The Village and/or Town’s failure to issue a determination of significance pursuant to SEQRA within ninety (90) days of designation of Lead Agency and acceptance of a complete application, including a Full Environmental Assessment Form, shall be deemed a default pursuant to Article  V herein, except that the ninety (90) day period can be extended upon consent of Philmet.

 

(g)         Upon submission by Philmet of an Application to either the Village or Town, the applicable municipality shall, within thirty (30) days of receipt, provide Philmet with a Determination of Completeness.  In the event that the Application is determined to be incomplete, the applicable municipality shall provide, in writing, a list of the outstanding items.  Submission of additional materials by Philmet shall be subject to the same thirty (30) day Determination of Completeness as set forth herein.

 

                        1.6.            Village Obligations.  In addition to all obligations set forth herein, the Village shall have the following obligations:

 

(a)                As soon as practicable upon the signing of this Agreement, the Village shall adopt a Resolution withdrawing its Condemnation Resolution as set forth in Section 4.1, by adopting a Resolution of Withdrawal, which shall be in substantially the form annexed hereto as Exhibit “B.” 

 

(b)               The Village shall either: (i) terminate its consideration of its proposed zoning amendments; or (ii) in good faith consider further revisions to its proposed Zoning Amendments, including, but not limited to, permitting certain manufacturing uses such as the Facility and Power Plant to remain as-of-right uses.

 

(c)                Within thirty (30) days after the signing of this Agreement, the Village will amend its Moratorium on Waste Disposal Facilities in the Village of Corinth to permit the processing and approval of Philmet’s application in the Industrial (I) Zoning District.

 

                        1.7.            Town Obligations.  In addition to all obligations set forth herein, the Town shall have the obligation to either (i) amend its Moratorium on Waste Disposal Facilities in the Town of Corinth to permit the processing and approval of Philmet’s application in the Industrial (I) Zoning District within thirty (30) days after the signing of this Agreement; or (ii) adopt its proposed Local Law Amending the Corinth Town Code Relating to the Disposal of Waste, which shall permit the as-of-right deposit into the Landfill of paper sludge and wood ash generated on-site, and shall set forth an approval process to permit the deposit of additional industrial waste generated on-site.

 

 

1.8.        Future Development.  The parties acknowledge that the Project set forth herein is not intended to limit future development potential of the Site.  Future development applications shall be processed in good faith, but are not integral to the Project herein, nor is the Project dependant upon any future development of the Site.  Any future development is subject to conformance with the Declaration, as defined in Section 4.1.

ARTICLE II

 

CONSTRUCTION SCHEDULE

 

2.1.            Commencement of Construction.            (i)  Upon the issuance of  a building permit, Philmet shall timely commence, to the extent permitted by law, construction of the Facility, (ii) Upon the issuance of a building permit, Philmet shall timely commence, to the extent permitted by law, construction of the Power Plant, and (iii) Philmet may commence the operation of the Landfill upon completion of construction and the generation of any on-site industrial waste pursuant to the Local Law Amending the Corinth Town Code Relating to the Disposal of Waste, adopted _________, 2007 and any approvals required thereunder, subject to any limitations imposed by the DEC. 

 

2.2.            Completion of Construction.    Philmet may construct the Facility and Power Plant in phases, but if construction of the Facility is not completed within ____ (__) years of commencement of construction, then Philmet shall be deemed to be in default of this Agreement, unless the failure to complete construction is due to an act or event beyond the reasonable control of Philmet.  Philmet acknowledges its intention to complete construction of the Facility within ____ (__) years of commencement of construction.

 

                        2.3.             Failure to Commence Construction.  If Philmet does not commence construction within the specified time limit, then Philmet shall be deemed to be in default of this Agreement.

 

2.4.            Consultation.  It is the intent of the parties that during the term of this Agreement, representatives of the Village, Town and Philmet shall meet regularly, either in person or by any other means, to confer about the progress of the parties’ activities under this Agreement, and to coordinate the cooperative implementation of the Project. 

 

ARTICLE III

 

CONSULTANT EXPENSES; CERTAIN APPLICATION COSTS

 

3.1.            Advances by Philmet.  Philmet shall at its own expense supply its own services and expertise.  Philmet shall also be responsible for and pay to the Village and/or Town all technical consultant fees incurred by the Village and/or Town, limited to all reasonable fees and disbursements incurred by the Village and/or Town with respect to SEQRA review, in accordance with a certain Escrow Agreement made by the parties hereto and dated even date herewith, incorporated herein by reference and as set forth in full and attached hereto as Exhibit “C.”

 

3.2.        Escrow Fund.  Philmet shall within _____ (__) business days of the execution of this Agreement establish a collateral account in the amount of $_______, and shall thereafter maintain the minimum balance of $______ to fund the obligations set forth in Section 3.1 herein and the Escrow Agreement until all bills and invoices from technical consultants have been submitted and paid in full as set forth herein and in the Escrow Agreement (the “Termination Date”); provided, in no event shall the Escrow Fund remain in effect more than sixty (60) days after the Termination Date, except in the event that an expense is in dispute, in which case the amount in dispute shall remain in the Escrow Fund.

 

ARTICLE IV

 

DECLARATION OF USES AND COVENANTS

 

4.1.            Execution of Declaration of Uses and Covenants.  Simultaneous with the signing of this Agreement, Philmet shall execute and deliver in recordable form a Declaration of Uses and Covenants (the “Declaration”), which shall be in substantially the form annexed hereto as Exhibit “D”.  The Declaration shall be delivered to Lemery Greisler LLC, as attorneys for the Village of Corinth, to be held in escrow pursuant to the terms hereof.  Failure of Philmet to deliver said executed Declaration shall be deemed a default of this Agreement pursuant to Article V herein.

 

                        4.2.            Withdrawal of Condemnation Resolution.  Subsequent to the adoption of the Resolution of Withdrawal as set forth in Section 1.5(a), the Village will expeditiously provide proof to Philmet’s attorneys, Zarin & Steinmetz, of filing with the Village Clerk of said Resolution of Withdrawal.

 

4.3.            Recording of Declaration.  The Declaration shall be held in escrow until such time as proof is served upon Philmet of the filing with the Village Clerk of the Resolution of Withdrawal, as set forth in Section 4.2, at which time the Escrow Agent shall promptly file the Declaration in the Office of the Saratoga County Clerk, and provide notice of filing to all parties set forth in Section 6.11.  Failure to file the Declaration and provide said notice shall be deemed a default pursuant to Article V herein.

 

4.4.            Payment of Taxes.  [to be added re: property and school taxes in arrears.  Possible installment agreement]

ARTICLE V

 

DEFAULT, TERMINATION AND REMEDIES

 

5.1              In the event of any breach of this Agreement by any party, the aggrieved party may seek appropriate relief in accordance with the procedures set forth at Article 6.8.

 

5.2              The relief shall not include money damages except for breach of Philmet’s obligations under Article 3.2 of this Agreement.

 

5.3              The parties shall execute a Termination of Declarations which shall be in substantially the form annexed hereto as Exhibit “E” (the “Termination of Declarations”).  The fully executed Termination of Declarations shall be delivered to Zarin & Steinmetz, attorneys for Philmet, who shall hold the Termination in escrow subject to the terms of Sections 5.4.  At the expiration of three (3) years from the date of this Agreement, the Termination of Declarations, if not recorded previously, shall be delivered to Lemery Greisler LLC, as special counsel to the Village .

 

5.4              In the event that within three (3) years of the date of this Agreement, either the Village or the Town:  (i) arbitrarily, capriciously, or summarily refuses to grant all necessary final and unappealable land use and zoning approvals for the Project, provided that failure to obtain said approvals is through no fault of Philmet; (ii) commences a proceeding pursuant to New York’s Eminent Domain Procedures Law to condemn the respective Village or Town Portion of the Site, or any part thereof; (iii) enacts a moratorium which has the effect of  prohibiting the construction and operation of the Project; or (iv) amends its Zoning Ordinance to prohibit the construction and operation of the Project, Philmet may record the Termination of Declarations.  SUFFICIENCY OF THREE YEAR TIME FRAME IS SUBJECT TO VILLAGE CHRONOLOGY    

 

ARTICLE VI

 

MISCELLANEOUS

 

6.1.        Mutual Cooperation.            The Village, Town and Philmet agree to cooperate with each other and to coordinate all obligations hereunder in order to facilitate the transactions contemplated by this Agreement and the obligations of the parties hereunder.

 

6.2.        No Recording.          This Agreement shall not be recorded by any party hereto. 

 

6.3.        No Partnership Created.  It is understood and agreed that no agreement of partnership is intended hereby and nothing herein shall be deemed or construed to constitute the Village and/or Town as the partner of Philmet or constitute either the agent of the other such as to permit or empower the Village and/or Town or Philmet to bind the other to financial or other obligations to third parties nor constitute or give rise to any joint ownership or joint venture.

 

6.4.            Severability.  If any provision of this Agreement shall be held invalid or unenforceable by any court of competent jurisdiction, such holding shall not invalidate or render unenforceable any other provision hereto unless such provision shall be a material provision hereof in which case this Agreement shall be terminated upon thirty (30) day written notice given by either party to the other. 

 

6.5.            Performance of Governmental Functions.  Notwithstanding anything in this Agreement to the contrary, nothing contained in this Agreement or any approvals or consents by the Village and/or Town in connection with the Project shall limit or impair the Village and/or Town from exercising or performing any regulatory, policing or permitting functions or obligations.

 

6.6.        No Third Party Rights.  Nothing contained in this Agreement is intended to create any rights or to otherwise benefit any parties other than the Village, Town or Philmet.

 

6.7.            Representations as to Development.  Philmet represents and agrees that its undertakings pursuant to this Agreement are for the purpose of development of the Site and not for speculation in land holding.

 

6.8.            Governing Law; Venue.   This Agreement shall be governed by and interpreted in accordance with the laws and regulations of the State of New York.  Saratoga County shall be the venue and shall have exclusive jurisdiction for resolution of any disputes hereunder, except as otherwise provided by law.

 

6.9.            Ambiguities.  The parties agree that this Agreement is the result of their joint efforts and, in the event of any litigation over the terms hereof, ambiguities, if any, shall not be construed against any party as drafter.

 

6.10.            Amendments.  This Agreement may not be amended except by a writing which has been signed by all parties and which has been duly authorized by the Village Board and Town Board. 

 

6.11.      Notice.   Any notices to be given hereunder shall be made by overnight delivery services, return receipt requested, or by personal delivery to a party at its address set forth herein, with a copy similarly delivered to the party's attorney set forth below:

 

LEMERY GREISLER LLC Special Counsel to the Village of Corinth 50 Beaver Street Albany, New York  10562 Telephone: (518) 433-8800 Attn: Paul A. Levine, Esq.	MILLER, MANNIX, SCHACHNER & HAFNER, LLC Counsel to the Town of Corinth 451 Glen Street, P.O. Box 765 Glens Falls, New York 12801 Telephone: (518) 793-6611  Attn: Robert H. Hafner, Esq.
-and-   ZARIN & STEINMETZ Attorneys for Philmet 81 Main Street, Suite 415 White Plains, New York 10601 Telephone: (914) 682-7800 Attn:  David S. Steinmetz, Esq.

 

               

IN WITNESS WHEREOF, the parties have executed this Site Development Agreement as of the date first above written.

 

 

PHILMET CAPITAL GROUP, LLC

 

 

 

By:_____________________________

 

 

The Village of Corinth

 

 

 

By:_____________________________

 

 

The Town of Corinth

 

 

 

By:_____________________________