N.Y. Comp. Codes R. & Regs. tit. 9 § 5301.1

Current through Register Vol. 46, No. 45, November 2, 2024

Section 5301.1 - Application to develop and operate a gaming facility

The form of application to develop and operate a gaming facility shall include, without limitation, the following elements, consistent with Racing, Pari-Mutuel Wagering and Breeding Law sections 1313 and 1315(2):

(a)Executive summary. An applicant shall submit a brief executive summary with its application, highlighting the principal terms of the application.

(b) Applicant information.

(1) An applicant and, if applicable, the manager shall provide identifying information including, without limitation:

(i) full name (including trade name or d/b/a) of the applicant. If the applicant is a corporation, the full name shall be listed as it appears on the certificate of incorporation, charter, by-laws or other official document of the applicant;

(ii) name, title, email address, mailing address and telephone number of the individual to be contacted in reference to the application;

(iii) principal business address and telephone number for an applicant and, if applicable, the manager of the proposed gaming facility, including the URL for any website maintained by or for the applicant or manager;

(iv) type of business entity under which the applicant is formed, the state, or other jurisdiction, under the laws of which the applicant is incorporated, organized, formed or registered and the Federal tax identification number and evidence of existence or formation as an entity as of a date no later than 10 days prior to the date of submission of the application;

(v) ownership chart of the applicant and, if applicable, the manager and their respective affiliates, including percentage ownership interests in the applicant and the manager by their respective direct and indirect owners, illustrating the ultimate owners and real parties in interest. For a publicly held company, disclosure of owners may be limited to owners owning five percent or more of the publicly traded company;

(vi) organizational chart of the applicant and, if applicable, the manager, illustrating the organizational structure likely to be used by the applicant or the manager in the event that applicant is awarded a license, including all casino key employees;

(vii) name and business address of each person or entity that has a direct or indirect ownership, or other proprietary interest, either financial, voting or otherwise, in the applicant and, if applicable, the manager and a description of that interest. For a publicly traded company, disclosure of owners may be limited to owners owning five percent or more of the publicly traded company; and

(viii) name and business address of each person or entity that has a direct or indirect ownership, or other proprietary interest, either financial, voting or otherwise, in the applicant and, if applicable, the manager and a description of that interest. For a publicly traded company, disclosure of owners may be limited to owners owning five percent or more of the publicly traded company;

(ix) name and business address of all promoters, sponsors, personnel, consultants, sales agents or other entities involved in aiding or assisting the applicant's efforts to obtain a gaming facility license.

(2) An applicant shall identify all conflicts of interest, including, without limitation, any relationship or affiliation of the applicant, manager or any of their respective affiliates that currently exist with any member, employee, consultant or agent of the Gaming Facility Location Board or the commission that is a conflict of interest, or may be perceived as a conflict of interest, during the application process. Further, if any such conflict should arise during the term of the application process, the applicant shall notify the Gaming Facility Location Board in writing of such conflict.

(3) An applicant shall also identify relationships with public officials, including, without limitation:

(i) any public official or officer or employee of any governmental entity, and immediate family members of such public official, officer or employee, who directly or indirectly owns any financial interest in, has any beneficial interest in, is the creditor of, holds any debt instruments issued by, or holds or has an interest, direct or indirect, in any contractual or service relationship with the applicant, the manager or their affiliates; and

(ii) any person not identified in subparagraph (i) of this paragraph who has any arrangement, written or oral, to receive any compensation from anyone in connection with the application, the application process or the obtaining of a gaming facility license. The applicant shall describe the nature of the arrangement, the services to be provided and the amount of such compensation, whether actual or contingent.

(4) If the applicant does not identify any direct or indirect conflict of interest, or perceived conflict of interest, the applicant shall state that no direct or indirect conflict of interest, or perceived conflict of interest, exists with respect to its application.

(5) If the applicant identifies a direct or indirect conflict of interest, or potential conflict of interest, the applicant shall disclose such conflict of interest or potential conflict of interest and the steps the applicant will take to resolve such conflict of interest or potential conflict of interest.

(6) The Gaming Facility Location Board shall, after providing the applicant or manager, as applicable, with an opportunity to present comments, make the final determination as to whether any activity constitutes a conflict of interest. The decision of such board with regard to an asserted conflict shall be final.

(7) An applicant shall identify any current or previous contract that the applicant has had with, and any current or previous licenses that the applicant has been issued by or under, any department or agency of the State of New York.

(8) If the gaming facility will be managed by a manager that is different from the applicant, the applicant shall describe the relationship between the manager and the applicant including, without limitation, a summary of the terms of any and all agreements, contracts or understanding between the manager and the applicant.

(9) An applicant shall submit, as applicable, copies of the following documents that apply to the applicant, the applicant's owners, any manager or any of the manager's owners:

(i) certified copy of its certificate of incorporation, articles of incorporation or corporate charter;

(ii) certified by-laws as amended through the date of the application;

(iii) certified copy of its certificate of formation or articles of organization of a limited liability company;

(iv) certified limited liability company agreement or operating agreement as amended through the date of the application;

(v) certified copy of its certificate of partnership;

(vi) certified partnership agreement as amended through the date of the application;

(vii) certified copy of its certificate of limited partnership;

(viii) certified limited partnership agreement as amended through the date of the application;

(ix) other legal instrument of organization;

(x) joint venture agreement;

(xi) certified trust agreement or instrument, each as amended through the date of the application;

(xii) voting trust or similar agreement; and

(xiii) stockholder, member or similar agreement.

(c)Finance and capital structure. An applicant shall:

(1) describe its finance and capital structure including:

(i) minimum capital investment plans;

(ii) a study completed by an expert who is neither the applicant nor an affiliate of the applicant, assessing the size of the potential gaming market for the proposed gaming facility;

(iii) a detailed financial forecast annually for a period of at least 10 years after opening for gaming on a best-, average- and worst-case basis;

(iv) a qualitative five-year business plan for the proposed gaming facility describing, at minimum, the components and projected results of the material revenue lines and expense categories of the proposed gaming facility, the applicant's sources and availability of financing, the principal business and financing risks of the proposed gaming facility and plans to mitigate those risks;

(v) a detailed description of how the project will be financed;

(vi) a detailed description in regard to each financing source;

(vii) a schedule of the financing sources anticipated capital structure after construction and first three years of operation of the proposed gaming facility; and

(viii) an analysis of how the financing plans for the application fee, application and suitability investigation expenses, license fee, capital investment deposit, construction and first three years of operation of the proposed gaming facility will affect the applicant's compliance with the financial covenants under its current financing arrangements;

(2) submit an independent audit report for each of the last five fiscal years in regard to the applicant and each of its parents;

(3) submit bank references, business and personal income and disbursement schedules, tax returns and other reports filed with government agencies and business and personal accounting check records and ledgers and copies of securities analyst and credit rating agency reports for the past three years;

(4) submit all United States Securities and Exchange Commission filings, if any, for the financing sources, for the three fiscal years ended before the date applications filed pursuant to this section are due and any interim period between the end of the most recent fiscal year and the date applications are due;

(5) provide any information relating to legal actions including, without limitation:

(i) pending legal actions, whether civil, criminal or administrative in nature, to which the applicant is a party and a brief description of any such actions;

(ii) any settled or closed legal actions, whether civil, criminal or administrative in nature, against the applicant over the past 10 years;

(iii) any judgments against the applicant within the past 10 years, including the case name, number, court, and what the final ruling or determination was from the court, administrative body or other tribunal;

(iv) a statement whether the applicant was indicted, accused or convicted of a crime or was a subject of a grand jury or criminal investigation during the past 10 years; and

(v) a statement whether the applicant was the subject of any order, judgment or decree of any court, administrative body or other tribunal of competent jurisdiction permanently or temporarily enjoining it from or otherwise limiting its participation in any type of business, practice or activity during the past 10 years;

(6) describe any bankruptcies, voluntary or involuntary, assignments for the benefit of creditors, appointments of a receiver or custodian or similar insolvency proceedings made, commenced or pending during the past 10 years by or involving any applicant;

(7) describe any contract, loan agreement or commitment that the applicant has breached or defaulted on during the past 10 years and provide information for any lawsuit, administrative proceeding or other proceeding that occurred as a result of the breach or default;

(8) describe any delinquencies in the payment of any fees or tax required under any Federal, State or municipal law within the past 10 years by an applicant and describe the circumstances for any payment not made because of a dispute;

(9) describe any gaming-related licenses issued in any jurisdiction, and provide a detailed explanation if the applicant has ever had a gaming-related license denied, suspended, withdrawn or revoked, or if there is a pending proceeding that could lead to any of these conditions; and

(10) describe any disciplinary action brought against the applicant by any gaming licensing authority during the past five years;

(11) describe the applicant's and, if applicable, the manager's experience, training and expertise in developing, constructing and operating gaming facilities and related facilities;

(12) describe any destination casino resort or other gaming projects that the applicant and, if applicable, the manager, has publicly announced that it is in the process of acquiring, developing or proposing to acquire or develop; and

(13) describe all financial commitments and guarantees the applicant or, if applicable, the manager, or its affiliates is prepared to provide to the commission to ensure that the gaming facility is completed, license conditions are fulfilled and sufficient working capital is available to allow continuous operation in the manner described in the applicant's financial forecasts.

(d) Economics. An applicant shall provide:

(1) the benefits of the applicant's gaming facility location, including:

(i) the estimated recapture rate of gaming-related spending by New York residents travelling to out-of-state gaming establishments;

(ii) a focus on out-of-state visitors and the anticipated gaming and non-gaming gross revenues the applicant anticipates from out-of-state visitors during each of the first five years of gaming facility's operations on a low-, average- and high-case scenario;

(iii) how the applicant plans to compete with other nearby gaming facilities in New York and other jurisdictions; and

(iv) the applicant's overall perspective and strategy for broadening the appeal of the region and the host municipality in which the gaming facility is located;

(2) a description of any loyalty, reward or similar frequent player program maintained by the applicant, or, if applicable, by the manager and whether this program maintains a casino customer relationship management system and database that tracks the program members and to whom this program and database will be used to market, promote and advertise the gaming facility;

(3) economic impact studies completed by an independent expert showing the applicant's proposed gaming facility's:

(i) overall economic incremental benefit to the region, the State and the host municipality and nearby municipalities;

(ii) positive and negative impacts on the local and regional economy, and on the host and nearby municipalities including impacts on incremental job creation, unemployment rates, cultural institutions and small businesses; and

(iii) projections for all estimated state, county and local tax revenue for the first five years of operations on a high-, average- and low-case basis;

(4) a description of the proposed gaming facility's inclusion within, and coordination with, a regional and local economic plan;

(5) a description of plans and minimum commitments for use of New York-based suppliers and materials in the construction and operational phases of applicant's project;

(6) a description of the employment opportunities created by the proposed gaming facility, including, among other things, the number of employees to be employed at the proposed gaming facility and the pay rate and benefits for employees;

(7) a description of the competitive environment in which the applicant anticipates the proposed gaming facility will operate over the 10 years after opening;

(8) a description of the target market segments of the gaming facility;

(9) the marketing plans for the proposed gaming facility with specific reference to pre-opening marketing and opening celebrations;

(10) a description of strategies to be used by the applicant to deal with the cyclical/seasonal nature of tourism demand; and

(11) a proposed tax rate on gross gaming revenue from slot machines, which shall be no less than 25 percent, and a proposed tax rate on gross gaming revenue from all other sources, which shall be no less than 10 percent, as prescribed by Racing, Pari-Mutuel Wagering and Breeding Law section 1351(1-a). The application may provide for an applicant to propose tax rates in an initial submission and a supplement proposing final tax rates, after it is known which applicants have received community advisory committee assent to proceed with their applications, pursuant to Racing, Pari-Mutuel Wagering and Breeding Law section 1321 d(3)(e)(x) and (f)(1).

(e)Land construction and design of physical plant. An applicant shall:

(1) describe the location of the proposed gaming facility, including:

(i) the address, maps, book and pages numbers from the appropriate registry of deeds;

(ii) the dimensions and total acreage of the land that will be developed for the proposed gaming facility;

(iii) the assessed value of the land for the proposed gaming facility and of the existing facilities, improvements and infrastructure thereon, if any, at the time of application, and a schedule of the real estate taxes paid on such property for the past five years;

(iv) description of, and aerial and surface photography demonstrating the topographic, geographic, and vegetative characteristics of the land for the proposed gaming facility as well as any significant existing facilities, improvements or infrastructure thereon;

(v) description of any geological or structural defects of the proposed gaming facility and any engineering, design and construction plans to remedy the defect; and

(vi) any phase I or II reports or any other investigations of the site, sub-surface, geotechnical or environmental conditions or hazardous materials that have been completed related to the land for the proposed gaming facility;

(2) describe the ownership of the land, including:

(i) all ownership interests in the land for the past 20 years, including all easements options, encumbrances and other interests in the property;

(ii) copies of any lease, deed, option or other documentation and provide an explanation as to the status of the land upon with the gaming facility will be constructed;

(iii) the total amount the applicant has spent or proposes to spend to acquire or occupy the land for the proposed gaming facility; and

(iv) if the applicant does not currently possess an ownership interest in the land at the proposed location, describe how the applicant intends to acquire the necessary interest in the land;

(3) provide copies of current local zoning approvals and any rezoning, variances and/or land use approvals and any State or local permits or special use permits required for the gaming facility site, a detailed explanation of the status of any request for any of the foregoing, together with copies of all filings, including a specific schedule of applications for such approvals and anticipated approval dates;

(4) provide a description of, and schematics illustrating, the applicant's master plan for the land and the gaming facility site showing major activities and functions, and a phasing plan for the proposed components;

(5) provide designs for the proposed gaming facility including among other things, a site plan, floor plans, building elevations and perspectives, cross sections sufficient to illustrate the interrelation of principal building program components, proposed hardscape, landscape and landscape treatments including any off-site improvements required to implement the proposal, exterior lighting design, plans for parking structures, surface parking and traffic circulation plans, color perspective renderings of the exterior (day and night) and interior of the gaming facility; and access plans indicating adjacent properties with all related infrastructure and access to and egress from all major traffic arterials;

(6) describe the proposed gaming area, including square footage, number and types of table games and slot machines, electronic gaming devices, poker tables and any other forms of gaming, number of gaming positions, specific location of the games and machines in the proposed gaming facility, any special purpose rooms, layout of cage area, count room, players club areas, any other gaming related amenities not included in the above, and any phased building plans;

(7) provide a detailed description of the proposed amenities including hotels, meeting and convention facilities, dining facilities, entertainment venues and non-gaming amenities; in addition, provide a statement of how the proposed amenities will compare in quality to other area amenities and those offered in competitive gaming facilities;

(8) provide the applicant's proposed hours of operation for the various components of the proposed gaming facility including the casinos, restaurants, bars and other amenities;

(9) provide a description of the square footage of back house security, kitchen and office facilities to support the remaining building programs;

(10) provide a detailed description of proposed parking and transportation infrastructure including, among other things, parking spaces for employees, patrons and buses; tour bus, taxi and valet drop-off areas; and service vehicle and satellite parking;

(11) provide a description of the planned dock and loading facilities, as well as armored car bay;

(12) provide a description of mechanical systems and other on-site infrastructure plans;

(13) provide the names, addresses and relevant experiences of the architects, engineers, contractors, and designers of the proposed gaming facility and related proposed infrastructure improvements;

(14) provide a detailed construction budget and timeline for construction, including plans for mitigating impacts during and following construction;

(15) provide information concerning the number and quality of construction jobs to be provided during the construction period; and

(16) provide names of all proposed gaming equipment vendors.

(f)Internal controls and security systems. An applicant shall:

(1) provide a description of the proposed internal controls, electronic surveillance systems and security systems for the proposed gaming facility and any related facilities; and

(2) provide a table of organization that shows staffing levels and identifies the critical departments for each control/risk management activity, data process, internal audit, compliance, security and surveillance function.

(g)Assessment of local support and mitigation of local impact. An applicant shall:

(1) demonstrate local support by doing the following:

(i) for an application pursuant to Title 2 of Article 13 of the Racing, Pari-Mutuel Wagering and Breeding Law, submitting to the Gaming Facility Location Board a resolution passed after a date announced by such board by a majority of the membership of the local legislative body of the host community supporting the application; or

(ii) for an application pursuant to Title 2-A of Article 13 of the Racing, Pari-Mutuel Wagering and Breeding Law, receiving an affirmative vote of the applicable community advisory committee, as set forth in Racing, Pari-Mutuel Wagering and Breeding Law section 1321 d(3)(e)(x) and (f)(1).

(2) provide completed studies and reports by independent experts showing the proposed gaming facility's cost to, among other things, each host municipality, nearby municipalities and the State for the proposed gaming facility including, without limitation, the incremental effect on local government services as well as the impact on the traffic infrastructure and the environment;

(3) provide plans for mitigating potential impacts on host municipality and nearby municipalities that might result from the development or operation of the gaming facility; and

(4) For a facility to be licensed pursuant to Title 2-A of Article 13 of the Racing, Pari-Mutuel Wagering and Breeding Law:

(i) a description of workforce demographics including current employment of minorities, women and service-disabled veterans in permanent and part-time jobs at the applicant's gaming facilities;

(ii) a description of diversity in the ownership and leadership of the corporate entity;

(iii) a description of efforts the applicant is currently undertaking to ensure diversity at its facilities and plans to undertake at the proposed facility including:

(a) establishing mentorship opportunities and other business development programs;

(b) incorporating an affirmative action program of equal opportunity by which the applicant guarantees to provide equal employment opportunities to all employees qualified for licensure in all employment categories, including minorities, women and persons with disabilities;

(c) providing specific goals for the inclusion of minorities, women and veterans on construction jobs;

(d) ensuring that any contractors or subcontractors to any contractor make good faith efforts to provide minorities, women and veterans an opportunity to participate in the workforce;

(e) working and partnering with minority-owned businesses; and

(f) developing a plan of action that shall promote diversity in its business model, financing, employment goals, and other social and economic equity roles in the gaming industry.

(h)Regional tourism and attractions. An applicant shall describe regional tourism and local promotion efforts, including:

(1) promoting local businesses in host municipality and surrounding municipalities including developing cross-marketing strategies with local restaurants, small businesses, hotels and retail outlets;

(2) establishing partnerships with live entertainment venues that may be impacted by a gaming facility;

(3) contracting with local business owners for provision of goods and services to the gaming facility, including developing plans designed to assist businesses in the State of New York in identifying the needs for goods and services to the facility;

(4) local agreements designed to expand gaming facility draw, including the number of patrons brought to the region; and

(5) cross-marketing efforts with other attractions.

(i)Measures to address problem gaming. An applicant shall describe measures to address problem gaming, including among other things, on-site resources available to those affected by gaming-related problems, description of proposed problem gaming signage on-site, training for facility employees to help identify those who may have gaming-related problems, exclusion policies and the process to notify individuals of the availability of self-exclusion, treatment and prevention programs, and metrics the applicant will use to measure whether the applicant is succeeding in efforts to reduce problem gaming.

(j)Workforce development. An applicant shall describe:

(1) the applicant's workforce development plans including:

(i) human resource hiring and training practices that promote the development of a skilled and diverse workforce and access to promotion opportunities through a workforce training program;

(ii) an affirmative action program that identifies specific goals for the use of minorities, women, persons with disabilities and veterans on construction, service and professional jobs;

(iii) on-the-job opportunities and training in areas and with respect to demographic groups with high unemployment; and

(iv) approach and experience in the last 10 years with hiring in general, and with particular respect to demographic groups evidencing high unemployment;

(2) whether the applicant and, as applicable, the manager, is subject to, or is negotiating any contract with organized labor, including hospitality services and whether the applicant or, as applicable, the manager has the support of organized labor for its application; and

(3) whether the applicant or, as applicable, the manager has entered into labor peace agreements with labor organizations that are engaged in representing gaming or hospitality industry workers in the State. If the applicant or, as applicable, the manager, has not entered into such agreements, the applicant shall provide a statement that it will enter such labor agreements and maintain such labor peace agreements in place during the term of a license.

(4) For a facility to be licensed pursuant to Title 2-A of Article 13 of the Racing, Pari-Mutuel Wagering and Breeding Law:

(i) a description of workforce demographics including current employment of minorities, women and service-disabled veterans in permanent and part-time jobs at the applicant's gaming facilities;

(ii) a description of diversity in the ownership and leadership of the corporate entity;

(iii) a description of efforts the applicant is currently undertaking to ensure diversity at its facilities and plans to undertake at the proposed facility including:

(a) establishing mentorship opportunities and other business development programs;

(b) incorporating an affirmative action program of equal opportunity by which the applicant guarantees to provide equal employment opportunities to all employees qualified for licensure in all employment categories, including minorities, women and persons with disabilities;

(c) providing specific goals for the inclusion of minorities, women and veterans on construction jobs;

(d) ensuring that any contractors or subcontractors to any contractor make good faith efforts to provide minorities, women and veterans an opportunity to participate in the workforce;

(e) working and partnering with minority-owned businesses; and

(f) developing a plan of action that shall promote diversity in its business model, financing, employment goals, and other social and economic equity roles in the gaming industry.

(k)Sustainability, resource management and sourcing. An applicant shall describe its sustainability and resource management plans with respect to the gaming facility, including its plans to, among other things, mitigate traffic flow, obtain LEED certification, use energy efficient equipment, manage storm water, conserve water, use renewable energy, monitor energy consumption and purchase, whenever possible, domestically manufactured slot machines.

(l)Other information. The application may request other information and materials that, in the judgment of the commission, would assist the Gaming Facility Location Board and the commission is discharging their duties pursuant to Racing, Pari-Mutuel Wagering and Breeding Law Article 13, this subchapter or other applicable law.

(m) Duty to update application.

(1) Upon completion of an application prescribed in this section and prior to the award of a gaming facility license, an applicant has a continuing duty to disclose to the New York Gaming Facility Location Board promptly, in writing (and electronically), any changes or updates to the information submitted in the application or any related materials submitted in connection therewith.

(2) The New York Gaming Facility Location Board may in its sole discretion determine to accept the update as an amendment to an application. The New York Gaming Facility Location Board shall not be required to accept any such information.

(3) An applicant's failure to promptly notify the New York Gaming Facility Location Board of any changes or updates to information previously submitted may be grounds for disqualification of an applicant from consideration by the New York Gaming Facility Location Board.

N.Y. Comp. Codes R. & Regs. Tit. 9 § 5301.1

Adopted New York State Register September 30, 2015/Volume XXXVII, Issue 39, eff. 9/30/2015

Amended New York State Register June 7, 2023/Volume XLV, Issue 23, eff. 6/7/2023