CAPITAL GRANT This GRANT DISBURSEMENT AGREEMENT includes all exhibits and attachments hereto and is made on the terms and by the parties listed below and relates to the Project described below: NEW YORK STATE URBAN DEVELOPMENT CORPORATION d/b/a EMPIRE STATE DEVELOPMENT ("ESD" or "GRANTOR"): 95 Perry Street, Suite 500 Buffalo, New York 14203-3030 Contact: Ms. Jean Williams, Senior Project Manager Phone: (716) 846-8243 Fax: (716) 846-8260 E-mail: jwilliams@esd.ny.gov THE GRANTEE: Fort Schuyler Management Corporation on behalf of ~he State University of New York College of Nanoscale Science and Engineeering 100 Seymour Drive Utica, New York 13502 Contact: Ms. Alicia Dicks, President Phone: (315) 792-7306 E-mail: adicks@ftsmc.org Federal Taxpayer ID#: 27-1459023 BENEFICIARY: Albany Molecular Research, Inc. c/o The Jacobs Institute 875 Ellicott Street, Buffalo, New York 14203 Contact: Mr. Michael Nolan, Vice President and Chief Financial Officer Phone: (518) 512-2211 E-mail: michael.nolan@amriglobal.com PROJECT NAME: Fort Schuyler Management Corporation/AMR! Capital PROJECT LOCATIONS: Temporary: The Jacobs Institute, 875 Ellicott Street, 5th Floor, Buffalo Permanent: 1001 Main Street, Buffalo PROJECT NUMBER: Y365 GRANT AMOUNT: $50,000,000 FUNDING SOURCE: Buffalo Regional Innovation Cluster CAPITAL GRANT, continued ESD APPROVAL DATE: March 28, 2014 PACB APPROVAL DATE: April 23, 2014 EXPIRATION DATE: December 31, 2025 TERMS AND CONDITIONS 1. The Project The Grantee shall: (a) complete the project as set forth in the ESD General Project Plan attached hereto as Exhibit A (the "Project"). (b) comply with the design and construction requirements attached hereto as Exhibit B. 2. Employment Goals & Reporting (a) The Grantee represents and warrants that it currently employs not less than the Baseline Employment (as hereinafter defined) set forth in Exhibit C to this Agreement and that it shall (i) achieve the employment goals as set forth in Exhibit C by retaining existing or hiring new Full-time Permanent Employees or (ii) repay a portion of the Grant as set forth in Exhibit C. (b) For purposes of this Agreement, a Full-time Permanent Employee shall mean (i) a fulltime, permanent, private-sector employee on the Grantee's payroll, who has worked at the Project Location(s) for a minimum of thirty-five hours per week for not less than four consecutive weeks and who is entitled to receive the usual and customary fringe benefits extended by Grantee to other employees with comparable rank and duties; or (ii) two part-time, permanent, private-sector employees on Grantee's payroll, who have worked at the Project Location(s) for a combined minimum of thirty-five hours per week for not less than four consecutive weeks and who are entitled to receive the usual and customary fringe benefits extended by Grantee to other employees with comparable rank and duties. Baseline Employment shall mean the number of Full-time Permanent Employees set forth in Exhibit C. (c) Grantee shall submit, by February 1 of each year during the term of this Agreement, the Employment Reporting Form attached hereto as Exhibit H, indicating the average number of Grantee's Full-time Permanent Employees for the 12 month period ending as of December 31 of the prior year. Full-time Permanent Employee Count, for each calendar year during the term of this Agreement, shall mean the greater of (i) the average number of Full-time Permanent Employees for the prior calendar year, computed by adding the number of Full-time Permanent Employees as .of the Grantee's last payroll date in the months of March, June, September and December and dividing that sum by 4, or (ii) the number of Full-time Permanent Employees as of the Grantee's last payroll date in December of such year. ESD Capital Grant Disbursement Agreement Terms & Conditions - Page 3 3. Conditions Precedent to Disbursement of the Grant No grant funds shall be disbursed unless the Grantee is in compliance with the Terms and Conditions of this Agreement, including, but not limited to, Exhibit E (Disbursement Terms), and the following conditions have been satisfied (and as 'to 3(d) and 3(e) below continue to be satisfied prior to each disbursement): (a) If the Grant Amount exceeds $100,000, or if, as described in Exhibit A, it is expected that there will be additional grants that in the aggregate exceed $100,000, ESD has received an opinion of Grantee's counsel, in substantially the form appended to this Agreement as Exhibit D. (b) Any necessary approval has been issued by the Director of the Budget of the State of New York, and the Grant funds have been received by ESD. (c) ESD has received a commitment fee, plus out-of-pocket expenses incurred by ESD in the making of the Grant, if any, as set forth in Exhibit E. (d) There have been no materially adverse changes in the financial condition of the Grantee since the date of submission of its application to ESD. (e) The Grantee employs at least the Baseline Employment as evidenced by the Employment Reporting Form attached hereto as Exhibit H. 4. Disbursement and Recapture Terms Subject to the terms and conditions contained in this Agreement, ESD shall disburse the Grant to the Grantee as follows: (a) ESD shall reimburse the Grantee for Project expenditures incurred by the Grantee as set forth in Exhibit E to this Agreement. Disbursements will be made upon submittal to ESD of a Payment Requisition Form, together with such supporting documentation as ESD may require, in the form attached to this Agreement as Exhibit F and its attachments, and Exhibit H. (b) In no event will ESD make any payment which would cause ESD's aggregate disbursements to exceed the Grant Amount. (c) The Grant, or a portion thereof, may be subject to recapture by ESD as provided in Exhibit C. 5. Non Discrimination and Contractor & Supplier Diversity The Grantee will comply with ESD's Non-Discrimination and Contractor & Supplier Diversity policies set forth in Exhibit G to this Agreement. ESD Capital Grant Disbursement Agreement Terms & Conditions - Page 4 6. No Liability of ESD ESD shall not in any event whatsoever be liable for any injury or damage, cost or expense of any nature whatsoever that occurs as a result of or in any way in connection with the Project and the Grantee hereby agrees to indemnify and hold harmless ESD, the State and their respective agents, officers, employees and directors (collectively, the "lndemnitees") from and against any and all such liability other than that caused by the gross negligence or the willful misconduct of the lndemnitees. 7. Responsibility Provisions (a) The Grantee shall at all times during the Agreement term remain responsible. The Grantee agrees, if requested by the President and Chief Executive Officer of ESD or his or her designee, to present evidence of its continuing legal authority to do business in New York State, integrity, experience, ability, prior performance, and organizational and financial capacity. (b) The President and Chief Executive Officer of ESD or his or her designee, in his or her sole discretion, reserves the right to suspend any or all activities under this Agreement, at any time, when he or she discovers information that calls into question the responsibility of the Grantee. In the event of such suspension, the Grantee will be given written notice outlining the particulars of such suspension. Upon issuance of such notice, the Grantee must comply with the terms of the suspension order. Activities under this Agreement may resume at such time as the President and Chief Executive Officer of ESD or his or her designee issues a written notice authorizing a resumption of performance under this Agreement. (c) Upon written notice to the Grantee, and a reasonable opportunity to be heard with appropriate ESD officials or staff,. this Agreement may be terminated by the President and Chief Executive Officer of ESD or his or her designee at the Grantee's expense where the Grantee is determined by the President and Chief Executive Officer of ESD or his or her designee to be non-responsible. In such event, the President and Chief Executive Officer of ESD or his or her designee may complete the requirements of this Agreement in any manner he or she deem advisable and pursue available legal or equitable remedies for breach. 8. Representations, Warranties and Covenants The Grantee represents, warrants and covenants that: (a) It has full power and authority to execute and deliver this Agreement and to perform its obligations hereunder. (b) This Agreement was duly authoriz~d, executed and delivered by the Grantee and is binding and enforceable against the Grantee in accordance with its terms. (c) It is a duly organized corporation, validly existing and in good standing under the laws of ESD Capital Grant Disbursement Agreement Terms & Conditions - Page 5 the State of its incorporation, has the corporate power and authority to own its assets and to transact the business in which it is now engaged or proposed to be engaged and is duly qualified as a foreign corporation and in good standing under the laws of each other jurisdiction in which such qualification is required and shall maintain its corporate existence in good standing in each such jurisdiction. (d) There are no actions, suits or proceedings or, to the knowledge of Grantee, threatened against, or affecting Grantee before any court, governmental entity or arbitrator, which may, in any one case or in the aggregate, materially adversely affect the financial condition, operations, properties or business of the Grantee, except as may have been disclosed in writing to ESD. (e) Grantee is in compliance and shall continue to comply in all material respects with all material applicable laws, rules, regulations and orders. (f) The information contained in the application submitted by the Grantee in connection with the project and the Grant, as such application may have been amended or supplemented (the "Application"), is incorporated herein by reference in its entirety. In the event of an inconsistency between the descriptions, conditions, and terms of this Agreement and those contained in the Application, the provisions of this Agreement shall govern. The Grantee hereby acknowledges that ESD has relied on the statements and representations made by the Grantee in the Application in making the Grant. The Grantee hereby represents and warrants that it has made no material misstatement or omission of fact in the Application or otherwise in connection with the Grant and, except as otherwise disclosed in writing to ESD, there has been no adverse material change in the financial condition of Grantee from the date of submission of the Application to the date hereof and that all other the information contained in the Application continues on the date hereof to be materially correct and complete. (g) The Grantee covenants that it will neither hold itself out as, nor claim .to be an officer, employee, agent or representative of ESD or the State by reason hereof, and that it will not by reason thereof, make any claim, demand or application for any right or privilege applicable to an officer, employee, agent or representative of ESD or the State, including wit.hout limitation, worker's compensation coverage, unemployment insurance benefits, social security coverage or retirement membership or credit. (h) Neither the Grantee nor any of the members of its Board of Directors or other governing body or its employees have given anything of value to influence any official act or the judgment of any person in the award of the Grant or the performance of any of the terms of this Agreement. (i) It shall maintain business operations at the Project Location(s) for the term of this Agreement. (j) The Grant shall be used solely for Project expenses in accordance with the terms and conditions of this Agreement. ESD Capital Grant Disbursement Agreement Terms & Conditions - Page 6 (k) The Grantee is solely responsible and has sufficient funding for all Project costs in excess of the Grant. (I) Grantee will use ESD grant funds, and submit payment requisitions, exclusively for eligible expenses related to capital works or purposes in accordance with IRS rules and regulations relating to ESD's bonds and in accordance with the New York Debt Reform Act. Grantee acknowledges that grant funds must be used solely for authorized capital purposes and not for operating expenses or other working capital items or non-capital purposes, irrespective of whether the funds are still used for the benefit of the Project. Grantee acknowledges that the consequences of breaching this covenant could result in violations of state law and/or large bond issuances being treated as taxable instead of tax exempt for federal and state tax purposes, loss of certain federal subsidies to the state, adverse ratings changes for such bonds; and disproportionate negative financial consequences to the state and bondholders. Grantee recognizes its financial obligations, risks and liabilities for breach of this covenant. ESD may, from time to time, request information from Grantee to confirm its compliance with this covenant and Grantee acknowledges its obligation under Section 9 (a) (ii) of the GDA to provide information upon request to ESD. (m) Grantee is in compliance and shall continue to comply with Section 7 of this Agreement. 9. Default and Remedies (a) Each of the following shall constitute a default by the Grantee under this Agreement: (i) Failure to perform or observe any obligation or covenant of the Grantee contained herein, other than an employment default as set forth in (iv) below, to the reasonable satisfaction of ESD and within the time frames established under this Agreement. (ii) Failure to comply with any request for information reasonably made by ESD to determine compliance by the Grantee with the terms of this Agreement or otherwise reasonably requested by ESD in connection with the Grant. (iii) The making by the Grantee of any false statement or the omission by the Grantee to state any material fact in or in connection with this Agreement or the Grant. (iv) Failure of the Grantee, for any time period, to meet the minimum employment goals required by Exhibit C. (v) A default beyond any applicable grace period by the Grantee, or any entity which Grantee directly or indirectly controls, is controlled by, or is under common control with, under any other agreement with ESD. ESD Capital Grant Disbursement Agreement Terms & Conditions - Page 7 (vi) Any manifestation, on the part of the Grantee, of an intention either: (x) to terminate and/or (y) to restructure, under the terms of any bankruptcy or insolvency statute or law, its business at the Project Location(s). This includes, without limitation, the announced or actual cessation of business activities at the Project Location(s), the initiation of proceedings under any dissolution statute, or the execution of an assignment for the benefit of creditors, or the solicitation of any composition and/or arrangement with creditors, or the issuance of "closing" or "termination" notices to employees under any state or federal statute, or the filing of any voluntary petition under any chapter of the United States Bankruptcy Code, or the failure by the Grantee to obtain the dismissal, within sixty (60) days of filing, of any involuntary proceeding brought under any chapter of the United States Bankruptcy Code. (vii) If the number of the Grantee's Full-Time Permanent Employees, as that term is defined in this Agreement, that are situated at the Project Location(s) as of the Grantee's last payroll date on or prior to the end of any quarter (with the quarters being those the quarterly dates of March 31, June 30, September 30 and December 31, as set forth in the Report of Employment that is annexed as Exhibit H to this Agreement) is less than fifty percent (50%) .of the number of Full Time-Permanent Employees, situated at the Project Location(s), required in accordance with the Employment Goals that are to be achieved as of the next Reporting Date, as specified in Exhibit C. (viii) Failure by the Grantee, for any period of time, to comply with Section 7 of this Agreement. (b) Upon the serving of notice to the Grantee of the occurrence of a default (which notice shall specify the nature of .the default), ESD shall have the right to terminate this Agreement, provided however, that if the default is pursuant to paragraph 9{a}(i) or 9(a)(ii), no default shall be deemed to have occurred if Grantee cures such default within ten {10) days of notice of default from ESD, or if the default pursuant to paragraph 9(a)(i) or 9(a)(ii) cannot be reasonably cured within such ten day period, Grantee commences to cure such default within the ten day cure period and cures the default within ninety {90) days thereafter, provided further that ESD shall not be obligated to make any disbursements during any such cure period. Defaults occurring under the terms and provisions of paragraph 9(a)(iii), 9(a)(iv), 9(a)(v), 9{a)(vi) and 9{a)(vii) are not subject to the cure provJsions provided herein. (c) Upon termination of this Agreement, ESD may (i) withhold any Grant proceeds not yet disbursed and (ii) require repayment of Grant proceeds disbursed to the Grantee in accordance with Exhibit C of this Agreement. Notwithstanding the foregoing, if ESD determines that any Grant proceeds had previously been released based upon fraudulent representations or other willful misconduct, ESD may require repayment of all funds and may refer the matter to the appropriate authorities for prosecution. ESD shall be entitled to exercise any other rights and seek any other remedies provided by law. ESD Capital Grant Disbursement Agreement Terms & Conditions - Page 8 10. Term The term of this Agreement shall commence on the date hereof and expire on the Expiration Date, as set forth on the first page of this Agreement. 11. Books and Records; Project Audit (a) The Grantee will maintain accurate books and records concerning the project for the term of this Agreement and for three (3) years from the ex~iration or earlier termination of this Agreement and will make those books and records available to ESD, its agents, officers and employees during Grantee's business hours upon reasonable request. (b) ESD shall have the right, upon reasonable notice, to conduct, or cause td be conducted, one or more audits, including field inspections, of the Grantee to assure that the Grantee is in compliance with this Agreement. This right to audit shall continue for three (3) years following the expiration or earlier termination of this Agreement. 12. Maintenance of Insurance Grantee shall maintain in full force and effect insurance, including, but not limited to, the insurance described hereafter, in such amounts and covering such risks as Grantor may require from time to time naming Grantor as an additional insured on a primary and non-contributory basis, with full waiver of subrogation. (a) The Grantee shall keep the buildings at the Project Location(s) and the building equipment insured against: (i) loss by fire, (ii) additional perils customarily covered under an all-risk policy and (iii) fiood hazard, if the Project Location(s) is located in an area identified by the Secretary of Housing and Urban Development as an area having special flood hazards and in which flood insurance has been made available under the National Flood Insurance Act of 1968, as amended. The insurance required in this paragraph (a) shall provide coverage for an amount not less than the .full replacement value of the buildings at the Project Location(s) and the building equipment, or such other amount as the Grantor may reasonably require, provided that (i) the amount of insurance coverage shall be in an amount sufficient to satisfy, at all times, any co-insurance requirements, and (ii) the amount of any flood hazard insurance shall not exceed the maximum amount of coverage available under the National. Flood Insurance Act. For the purposes hereof, the replacement value of the buildings on the Project Location(s) and the building equipment shall be determined by a qualified appraiser satisfactory to the Grantor. (b) When and to the extent required by the Grantor, the Grantee shall maintain in full force and effect insurance against (i) loss of rental income, (ii) loss of business income, (iii) damages to boiler, and (iv) any other risk as is customary in the industry of the Grantee. The insurance required in this paragraph (b) shall provide coverage in an amount ESD Capital Grant Disbursement Agreement Terms & Conditions - Page 9 satisfactory to Grantor. (c) The Grantee shall maintain Commercial General Liability Insurance providing both bodily injury (including death) and property damage insurance in a limit not less than One Million Dollars ($1,000,000) per occurrence, Two Million Dollars ($2,000,000) aggregate and Five Million Dollars ($5,000,000) umbrella. Grantor and each of its directors, officers, employees, agents and representatives shall be additional insureds and certificate holders, on a primary and non-participatory basis, with full waive of subrogation (General Liability Additional Insured Endorsement shall be on Insurance Service Office's (ISO) form number CG 20 26 1185). (d) All insurance required in this Section shall be issued by companies authorized to do business in the State of New York, satisfactory to Grantor pursuant to policies satisfactory to Grantor in form and substance. Without limiting the generality of the foregoing, the policies of insurance required hereby shall provide for ten (10) days' prior written notice of cancellation and shall be payable to the Grantor pursuant to a New York standard Grantor endorsement. (e) The Grantee shall give prompt written notice to the Grantor in the event of substantial damage to the Project Location(s) by reason of fire or other hazard or casualty. (f) Notwithstanding the provisions of Subdivision 4 of Section 254 of the Real Property Law, the Grantor shall be entitled to retain and apply the proceeds of any insurance required hereby to the payment of any obligations or, in the sole discretion of the Grantor, apply any or all such proceeds to the cost of restoration of the Project Location(s), in which case the Grantee shall proceed with reasonable diligence to repair, replace or rebuild the Project Location(s) to substantially their condition prior to such damage in full compliance with all legal requirements. (g) The Grantee shall provide the Grantor with copies of all policies of insurance (or certificates thereof) for the required insurance coverages in form and substance satisfactory to the Grantor. In addition, the Grantee shall provide the Grantor with copies of renewal policies (or certificates thereof) or temporary binders in the event renewal policies have not been issued, in a timely manner. The Grantee must, in any event, provide Grantor with satisfactory confirmation of renewal coverage by the renewal date. (h) In the event that the Grantee fails to maintain the insurance required hereby, the Grantor may obtain such insurance and pay the premiums therefor and the Grantee shall, on demand, reimburse the Grantor for any insurance premiums paid, together with interest thereon computed at the highest rate per annum allowable under New York State law. (i) The Grantee will not take any action, or permit any condition to exist, with respect to the Project Location(s) which may, in any manner, partially or wholly invalidate the insurance on the Project Location(s) required hereby. ----------- - - - - - - - - - - - - - - - - ESD Capital Grant Disbursement Agreement Terms & Conditions - Page 10 13. Survival of Provisions It is agreed that: (a} the provisions of Sections 6, 8(g}, (j} and (I} and 9, 11, 12, 13, 14, 15, 16, 17, 18, 21 and 22 {except insofar as any of the aforesaid Sections have been waived in accordance with the terms of Exhibit I to this Agreement} shall survive the expiration or early termination of this Agreement; and {b) such expiration or early termination shall not serve to limit, alter or modify any of the Grantee's obligations or responsibilities under the aforesaid Sections, and/or ESD's rights under such Sections, referenced in subsection {a) of this Section 13 of this Agreement. It is further agreed, moreover, that notwithstanding the expiration or early termination of this Agreement, ESD shall nevertheless retain the right to pursue, through and until the expiration of any applicable period of limitations established under the statutory or common law of the State of New York, any claim or claims arising from any Section of this Agreement, including but not limited to the above referenced Sections 6, 8{g), {j) and {I) and 9, 11, 12, 13, 14, 15, 16, 17, 18, 21 and 22 of this Agreement, and the expiration or early termination of this Agreement shall not constitute a defense to any such timely filed claim or cause of action that is asserted on ESD's behalf. 14. Notices {a) All notices, demands, requests or other communications permitted or required hereunder shall be in writing and shall be transmitted either: {i} via certified or registered United States mail, return receipt requested; {ii) by facsimile transmission; {iii) by personal delivery; {iv} by expedited delivery service; or {v} by e-mail. Such notices shall be addressed as follows or to such different addresses as the parties may from time-to-time designate: Empire State Development Name: Ms. Jean Williams Title: Senior Project Manager Address: 95 Perry Street, Suite 500, Buffalo, New York 14203-3030 Telephone Number: {716} 846-8243 Facsimile Number: {716) 846-8260 E-Mail Address: jwilliams@esd.ny.gov With a copy to: Title: General Counsel Address: 633 Third Avenue, 34th Floor, New York, NY 10017 Telephone Number: {212) 803-3750 Facsimile Number: {212} 803-3975 ESD Capital Grant Disbursement Agreement Terms & Conditions - Page 11 Fort Schuyler Management Corporation Name: Ms. Alicia Dicks Title: President Address: 100 Seymour Drive, Utica, New York 13502 Telephone Number: (315) 792-7306 E-Mail Address: adicks@ftsmc.org Albany Molecular Research, Inc. Name: Mr. Michael Nolan Title: Vice President and Chief Financial Officer Address: c/o The Jacobs Institute, 875 Ellicott Street, Buffalo, New York 14203 Telephone Number: (518) 512-2211 E-Mail Address: michael.nolan@amriglobal.com (b) Any such notice shall be deemed to have been given either at the time of personal delivery or, in the case of expedited delivery service or certified or registered United States mail, as of the date of mailing to the address provided herein 1 or in the case of facsimile transmission or email, upon receipt of a record, by the sender, that such a transmission has been completed. (c) The parties may, from time to time, specify any new or different address in the United States as their address for purpose of receiving notice under this Agreement by giving fifteen (15) days written notice to the other party sent in accordance herewith. The parties agree to mutually designate individuals as their respective representatives for the purposes of receiving notices under this Agreement. Additional individuals may be designated in writing by the parties for purposes of implementation and administration/billing, resolving issues and problems and/or for dispute resolution. 15. No Assignment The Grantee may not assign or transfer this Agreement or any of its rights hereunder. 16. No Waiver No waiver of any ESD's rights arising under this Agreement, or any other source, can occur unless such waiver shall be in writing and signed by ESD and such written document manifests a clear and unequivocal intent by ESD to waive its contractual or other legal rights. The term "waiver" as used herein is a term of art as used in the legal profession. ESD may not be estopped from asserting any of its legal rights, including but not limited to its rights under this agreement, unless ESD has signed a written document that clearly and unequivocally states that the other party may detrimentally rely upon the terms of such written document. Absent such written document, there shall be no estoppel against ESD and the other parties' alleged detrimental reliance shall be deemed to be unreasonable. The term "estoppel" is used herein is a term of art as used in the legal profession. ESD Capital Grant Disbursement Agreement Terms & Conditions - Page 12 17. Modification This Agreement may be modified only by a written instrument executed by the party against whom enforcement of such modification is sought. 18. Governing Law This Agreement shall be governed by and construed in accordance with the laws of the State of New York. This Agreement shall be construed without the aid of any presumption or other rule of law regarding construction against the party drafting this Agreement or any part of it. In case any one or more of the provisions of this Agreement shall for any reason be held to be invalid, illegal or unenforceable in any respect, such invalidity, illegality or unenforceability shall not affect any other provision hereof and this Agreement shall be construed as if such provision(s) had never been contained herein. In the event of a conflict between the Directors' materials attached hereto as Exhibit A and any other term or condition of this Agreement, then the term or condition of this Agreement shall govern. 19. Confidentiality of Information Information contained in reports made to ESD or otherwise obtained by ESD relating to trade secrets, operations and commercial or financial information, including but not limited to the nature, amount or source of income, profits, losses, financial condition, marketing plans, manufacturing processes, production costs, productivity rates, or customer lists, provided that such information is clearly marked "Confidential" by the Grantee, will be kept confidential by ESD, to the extent such information is determined by ESD to be exempt from public disclosure under the Freedom of Information Law and not otherwise required by law to be disclosed. Notwithstanding the foregoing, ESD will not be liable for any information disclosed, in ESD's sole discretion, pursuant to the Freedom of Information Law or other applicable law, or which ESD is required to disclose pursuant to legal process. 20. Special Provisions The Grantee shall comply with the special provisions, if any, set forth in Exhibit I. 21. Litigation Costs The Grantee shall pay, in any action or proceeding that is commenced to enforce and/or involves the enforcement of the terms and conditions of this Agreement, all of ESD's costs including, without limitation, ESD's attorneys' fees. The Grantee shall also pay any and all of ESD's collection costs including, without limitation, its attorneys' fees. 22. Waiver The Grantee knowingly and expressly waives the right to a trial by jury and the right to interpose any counterclaims in any action brought by ESD under the terms of this Agreement. ESD Capital Grant Disbursement Agreement Terms & Conditions - Page 13 This agreement is entered into as of the latest date written below: NEW YORK STATE URBAN DEVELOPMENT CORPORATION d/b/a EMPIRE STATE DEVELOPMENT a er, Senior Vice President, Loans and Grants (date) Fort Schuyler Management Corporation on behalf of the Sta University of New York College of Nanoscale Science and Engineeering (Printed name and title) ok¥!f (date) Albany Molecular Research, Inc. (Signature) (Printed name and title) (date) Rev. 8/14/2013 ESD CAPITAL GRANT DISBURSEMENT AGREEMENT EXHIBITS EXHIBIT A General Project Plan EXHIBIT B Reports - Design & Construction Requirements EXHIBIT C Employment Goals EXHIBIT D Opinion of Counsel EXHIBIT E Disbursement Terms EXHIBIT F Payment Requisition Form EXHIBIT F-1 Financial Condition Documentation EXHIBIT F-2 Project Cost Documentation EXHIBIT F-3 Equity Expenditure Documentation EXHIBIT G Non-Discrimination and Contractor & Supplier Diversity - Requirements and Procedures EXHIBIT G-1 M/WBE Participation/ Equal Opportunity Policy Statement EXHIBIT G-2 Staffing Plan EXHIBIT G-3 Workforce Employment Utilization Report EXHIBIT G-4 M/WBE Utilization Plan EXHIBIT G-5 Waiver Request Form EXHIBIT G-6 M/WBE Contractor Compliance and Payment Report EXHIBIT H Employment Reporting Form EXHIBIT H-1 Report of Employment Affidavit EXHIBIT I Special Provisions EXHIBIT A: GENERAL PROJECT PLAN See Materials Attached FOR CONSIDERATION March 28, 2014 TO: The Directors FROM: Kenneth Adams SUBJECT: Buffalo Billion Initiative - Buffalo (Western New York Region - Erie County)- Fort Schuyler Management Corporation/AMR! CapitalBuffalo Regional Innovation Cluster (Capital Grant) REQUEST FOR: Findings and Determinations Pursuant to Section 10 (g) of the Act; Authorization to Adopt the Proposed General Project Plan; Authorization to Make a Grant and to Take Related Actions General Project Plan I. Project Summary Grantee: Fort Schuyler Management Corporation (the "FSMC") on behalf of the State University of New York ("SUNY") College of Nanoscale Science and Engineering (the "CNSE") Beneficiaries: Albany Molecular Research, Inc. ("AMRI") Additional Beneficiaries to be identified in the future ESD* Investment: A grant of up to $50 million to be used for a portion of the cost of new equipment and real estate acquisition and build-out costs. * The New York State Urban Development Corporation doing business as Empire State Development ("ESD" or the "Corporation") Project Locations: Temporary: The Jacobs Institute 875 Ellicott Street, 5th Floor, Buffalo Permanent: 1001 Main Street, Buffalo Proposed Project: Establish a $250 million shared pharmaceutical research and development facility known as the Buffalo Medical Innovation and Commercialization Hub {the "BMIC Hub"). Project Type: Business establishment involving job creation Regional Council: The Western New York {"WNY") Regional Economic Development Council oversees the implementation of the Buffalo Billion Investment Development Plan. This project is part of Governor Cuomo's Buffalo Billion Initiative to create a hub for world-wide collaboration of scientific and medical invention and innovation. Employment Goal*: Initial employment at time of Application to ESD: 0 0 Current employment level: Minimum employment on January 1, 2020: 250** *New employees cannot be transferred from other NYS locations. **Employees must be tenants of the BMIC Hub. II. Project Cost and Financing Sources Financing Uses Building Acquisition/Build-Out New Equipment & Maintenance Asset Transfer - Molecule Library Personnel Consumables & Research Funding Total Project Costs Financing Sources ESD-Grant AMRI Asset Transfer(a) Grantee/Beneficiary Contributions(b) Total Project Financing Amount $15,000,000 68,000,000 30,000,000 112,500,000 24,500,000 $250,000,00Q Amount $50,000,000 30,000,000 170,000,000 Percent 20% 12% 68% $250,000,000 (a) Existing Molecule Library is being transferred from Washington State to Buffalo. (bl Combination of contributions from FSMC, AMRI and future tenants of the BMIC Hub. 2 Ill. Project Description A. Grantee Industry: Real Estate Development History: Authorized by Chapter 530 of the Laws of 2010, FSMC was formed by the SUNY Research Foundation, in partnership with the SUNY Institute of Technology ("SUNYIT"), to facilitate nanotechnology and semiconductor development. FSMC is authorized to purchase, construct, develop and manage facilities co-located with the SUNYIT educational campus at the SUNYIT Marcy Technology Complex as well as ground sub-lease the property west of Edie Road constituting the Marcy Nanocenter project to Mohawk Valley Economic Development Growth Enterprises ("EDGE") to attract nanomanufacturing operations by a commercial partner. The CNSE is a global education, research, development, and technology deployment resource dedicated to preparing the next generation of scientists and researchers in nanotechnology. Since its inception in 2004, it has been leveraging its resources in partnership with business and government to support accelerated high technology education and commercialization, and seeks to create jobs and economic growth for nanotechnology-related industries. Ownership: The Grantee is a 501(c)(3) not-for-profit organization. Market: Worldwide advanced technology industries ESD Involvement: In December 2012, Governor Cuomo announced a $50 million award from the Buffalo Billion Initiative to implement the BMIC HUB project, which involves a partnership between the FSMC-CNSE, AMRI and the Buffalo Niagara Medical Campus (the "Campus") to establish a shareduser facility to support drug screening, pharmaceutical development, technology optimization, business attraction, workforce training, and bioinformatics operation research, development and technology. The newly-established operation will be housed on the Campus, which is a 120-acre healthcare complex providing research, analytical and clinical service to more than one million patients and visitors annually in collaboration with its member institutions. Approximately $35 million of the $50 million award will be used for equipment costs; the balance of approximately $15 million will be used for real estate acquisition and build-out costs. 3 Past ESD Support: ---~-----~- Project# Program Local Assistance New York State Economic Development Assistance Program Economic Transformation Program V062 Amount Date Start (ESD Directors' Approval date) $2,250,000 0 ctober 22, 2009 ($4M was originally a warded to EDGE 0 n May 17,2007) Date End (Project Completion: Contract Expiration or Job Requirement) May 5, 2011 November 19, 2 009 ($10M was W277 X812 $1,300,000 $15,000,000 originally awarded to EDGE on September 19, 2008) N ovember 2003 March 31, 2013 Purpose Working Capital Grant Advanced rent payment to FSMC for the 15-year ground lease of the Marcy Nanocenter site by EDGE. Capital Grant De~ign and construction of the 300mm wafer clean room for the Computer Chip Commercialization Center ("Quad C"). December 2014 Capital Grant Construction of the 253,000-square-foot Quad C. December 2014 Capital GrantPurchase and install new advanced technology semiconductor packaging equipment and construction of the Quad C ------ State and Municipal Facilities Program B. Y728 $20,000,000 January 2014 Beneficiary Industry: AMRI is a fully integrated drug discovery, development, consultant and contract manufacturer. History: AMRI was established in 1991. Since 2001, AMRI, in collaboration with pharmacology, biotech, not-for-profits, and academia, has been involved in 175 drug discovery projects resulting in 75 pre-clinical candidates in various therapeutic areas. 4 Ownership: AMR/ is publicly-traded on NASDAQ. Size: AMRI employs a total of 1,300 people at its Albany headquarters and satellite locations in Rensselaer and Syracuse, NY; Burlington, MA; Singapore; the United Kingdom; and India. 700 employees are located in New York State. AMRI Market: AMRl's major customers are primarily in the pharmaceutical and biotechnology industries. Past ESD Support: In 1999 and 2000, ESD Directors' approved a total of $2.25 million for the acquisition of machinery and equipment and related training costs requiring the retention of 142 jobs and the creation of 308 jobs by January 1, 2006. All funds were disbursed. AMRI did not meet the employment goals; however, ESD waived recapture of the two grants. B. The Project Completion: Building Completion: December 2014 Equipment Acquisition and Molecule Library Transfer: June 2015 Personnel and Consumables: December 2019 Activity: The $250 million project involves the purchase and build-out of approximately 4 7,000-square-feet on the seventh floor of the newlyconstructed 340,000-square-foot Conventus Center for Collaborative Medicine Building ("Conventus"); the acquisition and installation of specialized equipment; the transfer of AMRl's existing chemical molecule library (the "Molecule Library") and support system from Washington State to Buffalo; consumables and research funding; and personnel necessary to establish a state-of-the-art pharmaceutical screening, biomarker development, and bioinformatics resource facility to support research and development programs. The specialized equipment will consist of robotics; mass spectrometry; fluorescent, luminescentand visual microscopy platforms; analytical testing and biological screening equipment; and bioinformatics tooling. The consumables and personnel expenses will be incurred over an approximate five-year period by AMRI and future tenants. FSMC will own the equipment, which will primarily be used by AMRI and future tenants of Conventus. However, given that the highly-specialized equipment is not readily accessible, it will be offered for use to pharmaceutical manufacturers, original equipment manufacturers and research partners with a cost recovery fee. 5 Results: The project, which is expected to create 250 jobs by January 1, 2020, will create a new state-of-the art, shared-user medical innovation hub to facilitate research, development, innovation, invention, workforce training, and collaboration to drive innovations and promote the development of new scientific advances, new products, and new methods. FSMC has already acquired a portion of the equipment, which is being installed at the Temporary Location. Once Conventus is complete, FSMC will transfer the acquired equipment to the new, Permanent Location. AMRl's Molecule Library consists of over 600,000 natural product and man-made compounds, biomarker tools, and datasets. Once the BMIC Hub is operational and the Molecule Library is transferred to the Permanent Location, AMRI plans to collaborate with existing and emerging pharmaceutical customers, suppliers, research partners, academia, health agencies, and national laboratories with the intent of combining and expanding its existing Molecule Library, which would then be marketed via a secure portal for utilization worldwide. Conventus is the largest private sector-financed development on the Campus and following completion in late 2014, it will house various medical, clinical and research tenants, including Kaleida Health and UBMD Physicians Group as its anchor tenants. It will also be connected by a skywalk to the future University at Buffalo School of Medicine. Economic Growth Investment Project: Benefit-Costs Evaluations are used in evaluating projects that are categorized as Business Investment, Infrastructure Investment, and Economic Growth Investment and that involve 1} job retention and/or creation and/or 2) construction-related activity. For Business Investment projects, benefits typically reflect the impact of both jobs and construction-related activity. For Infrastructure Investment and Economic Growth Investment projects, which generate long-term benefits not captured in the period of analysis and may involve no permanent job commitments, the estimated benefits typically reflect only construction-related activity. Evaluated over a seven-year period, the following are anticipated project impacts (dollar values are present value}: • • Fiscal benefits to NYS government from the project are estimated at $182,981; Fiscal cost to NYS government is estimated at $50,000,000; 6 • • • • • • • • Ratio of project fiscal benefits to costs to NYS government is 0.004:1; Fiscal benefits to all governments (state and local) are estimated at $319,927; Fiscal cost to all governments is $50,000,000; The fiscal benefit to cost ratio for all governments is 0.01:1; Economic benefits (fiscal plus total net resident disposable income from project employment) are estimated at $2,412,650; The economic benefit to cost ratio is 0.05:1; Project construction cost is $3,000,000, which is expected to generate 27 direct job years and 17 indirect job years of employment; For every construction-related direct job generated by this project, an additional 0.57 indirect job is anticipated in the state's economy. (See Project Summary Benefit-Cost Evaluation attached for detail and definitions.) Grantee Contact: Ms. Alicia Dicks, President 100 Seymour Drive Utica, NY 13502 Phone: (315) 792-7306 AMRI Contact: Mr. Michael Nolan, Vice President and Chief Financial Officer c/o The Jacobs Institute 875 Ellicott Street Buffalo, NY 14203 Phone: (518) 512-2211 ESD Project No.: Y365 Project Team: Origination Project Management Contractor & Supplier Diversity Finance Environmental Christina Orsi Jean Williams Vikas Gera Ross Freeman Sao Kang C. Financial Terms and Conditions 1. Upon execution of the grant disbursement agreement, the Company shall pay a commitment fee of 1% of the $50,000,000 capital grant ($500,000} and shall reimburse ESD for all out-of-pocket expenses incurred in connection with the project. · 2. The Grantee will demonstrate no materially adverse changes in its financial condition prior to disbursement. 7 3. Up to $50 million will be disbursed to the Grantee in installments as follows: a) Equipment: Up to $35 million will be disbursed, no more frequently than monthly, for invoices due and payable for the acquisition and installation of equipment incurred by FSMC. Requisitions for payment after the initial disbursement must include supporting documentation for the previous disbursement, including proof of payment for previously submitted payable invoices. The Grantee shall submit proof of payment for the final equipment disbursement within ninety (90) days of ES D's disbursement of these funds. b) Real Estate: Up to $15 million will be disbursed to the Grantee in installments as follows: a. Up to $12 million will be made upon presentation of an invoice and other documentation as ESD may require documenting the costs of the real estate acquisition for the seventh floor of Conventus. The disbursement will be made at the time of closing, assuming that all project approvals have been completed and funds are available, at a time and place agreed to by ESD. This disbursement will be available solely for real estate . acquisition costs. b. Up to $3 million will be disbursed, no more frequently than monthly, for invoices due and payable for Conventus build-out costs, incurred by FSMC. Requisitions for payment after the initial disbursement must include supporting documentation for the previous disbursement, including proof of payment for previously submitted payable invoices. The Grantee shall submit proof of payment for the final disbursement within ninety (90) days of ESD' s disbursement of these funds. Payment will be made upon presentation to ESD of an invoice and such other documentation as ESD may reasonably require. Expenditures reimbursed by ESD's grant must be incurred on or after December 4, 2012, to be considered eligible project costs. All disbursements must be requested by April 1, 2016. 4. ESD may reallocate the project funds to another form of assistance, at an amount no greater than $50 million, for this project if ESD determines that the reallocation of the assistance would better serve the needs of the Grantee and the State of New York. In no event shall the total amount of any assistance to be so reallocated exceed the total amount of assistance approved by the Directors. IV. Statutory Basis - Buffalo Regional Innovation Cluster The project was authorized in the 2012-2013 New York State budget and re-appropriated in the 2013-2014 New York State budget. No residential relocation is required as there are no families or individuals residing on the site. 8 V. Environmental Review ESD staff has determined that the project constitutes a Type II action as defined by the New York State Environmental Quality Review Act ("SEQRA") and the implementing regulations of the New York State Department of Environmental Conservation. No further environmental review is required in connection with the project. VI. Non-Discrimination and Contractor & Supplier Diversity ESD's Non-Discrimination and Contractor & Supplier Diversity policies will apply to this Project. The Recipient shall be required to: (i) include minorities and women in any job opportunities created, (ii) solicit and utilize MWBEs for any contractual opportunities generated in connection with the Project and (iii) shall be required to use Good Faith Efforts (pursuant to 5 NYCRR §142.8) to achieve an overall MWBE Participation Goal of 25% related to the eligible categories totaling approximately $15,000,000. As such, the goal MWBE utilization shall be no less than $3, 750,000. VII. ESD Employment Enforcement Policy ES D's Employment Enforcement Policy will not apply since the project will not directly create or retain jobs. VIII. ESD Financial Assistance Subject to Availability of Funds and Additional Approval The provision of ESD financial assistance is contingent upon the availability of funds and the approval of the State Division of the Budget. IX. Additional Submissions to Directors Resolutions New York State Map Project Finance Memorandum Benefit-Cost Analysis 9 EXHIBIT B: REPORTS -- DESIGN CONSTRUCTION REQUIREMENTS See Materials Attached EMPIRE STATE DEVELOPMENT CORPORATION DESIGN AND CONSTRUCTION REQUIREMENTS Buffalo, NY- Fort Schuyler Management Corporation/AMR! Capital, #Y365 For Design Phase (soft cost) reimbursements submit the following to ESDC: • • • • • Project Budget Final Construction Plans signed and sealed (CD) Selected architects/ engineers and copy of agreement Consultant's Code Ccrtificatfon Letter - Attachment .A Form Consultant's Certification of Completed Construction - l\ttacbment C Form http://www.tax.ny.~:;:.::::: ·:::: .· ........ ::: .... C: Cumulative Amount Previously (Cumulative if multi D: Grant Amount Received from ESD year grant) E: (D-C-B) Grant Balance Remaining $ 35,,000,000 12,000,000 3,000,000 TOTAL * .· $. 50,000,000 Up to $35 million will be disbursed, no more frequently than monthly, for invoices due and payable for the acqulsition and installation of equipment, Incurred by Fort Schuyler Management Corporatlon. ** Up to $12 million will be disbursed upon the documentation of the real estate acquisition for the seventh floor of Conventus. ***Up to $3 million will be disbursed, no more frequently than monthly, for build-out costs incurred by Fort Schuyler Management Corporation. CERTIFICATION I hereby warrant and represent to Empire State Development ("ESD") that: 1) To the best of my knowledge, information and belief, the expenditures. for which Fort Schuyler Management Corporation, on behalf of the State University of New York College of Nanoscale Science and Engineering, is seeking payment and/or reimbursement comply with the requirements of the Agreement between ESD and Fort Schuyler Management Corporation, on behalf of the State University of New York College of Nanoscale Science and Engineering, are eligible expenses, and that the payment and/or reimbursement of expenditures for which it is seeking payment and/or reimbursement from ESD does not duplicate reimbursement or disbursement of costs and/or expenses from any other source. These findings will be subject to audit by ES D's Internal Audit Department. 2) I have the authority to submit this invoke on behalf of Fort Schuyler Management Corporation, on behalf of the State University of New York College of Nanoscale Science and Engineering. The project, or portion thereof for which this invoice relates, has been completed in the manner outlined in the Agreement. 3) I hereby attach the following documents for ESD approval, in support of this requisition: Exhibit B: ESD Design & Construction Requirements Exhibit F-1: Financial Condition Documentation Exhibit F-2: Project Cost Documentation Exhibit G-2: Staffing Plan Exhibit G-3: Workforce Employment Utilization Report Exhibit G-4: M/WBE Utilization Plan EXHIBIT F: CAPITAL GRANT PAYMENT REQUISITION FORM, continued Exhibit G-5: Waiver Request Form Exhibit G-6: M/WBE Contractor Compliance and Payment Report Exhibit H-1: Report of Employment Affidavit in Lieu of Authorization to View Form NYS-45 A copy of the Certificate of Occupancy for projects involving construction or renovation (required only with final requisition) A copy of all current policies of insurance (or certificates thereof) in full compliance with the terms and conditions of Section 12 of the Agreement 4) There have been no materially adverse changes in the financial condition of the Grantee, exc~pt as disclosed in writing to ESD, from the date of submission of the Application to the date hereof. 5) The Grantee has acted responsibly from the date of submission of the Application to the date hereof in full compliance with the terms and conditions of Section 7 of the Agreement. S i g n a t u r e : - - - - - - - - - - - - - - - - - - - - - - - - - Date: _ _ _ _ _ _ _ _ _ _ _~ Print Name: _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ Title: _ _ _ _ _ _ _ _ _ _ __ EXHIBIT F-1: FINANCIAL CONDITION DOCUMENTATION Fort Schuyler Management Corporation's most recent financial statements dated not more than 90 days prior to the disbursement date. Exhibit F-2: DOCUMENTATION OF PROJECT COSTS Project Cost Summary Fort Schuyler Management Corporation/AMRI Capital, Project #Y365 Item#* Check# $Amount Invoice date Vendor Name Description of Item or Service TOTAL: PREPARED BY: DATE:----- *Indicate item numbers clearly on any supporting documentation such as checks, bank statements and invoices. Copy form as necessary. An Excel version of this form may be utilized. Please provide an Excel version of Exhibit F-2 to Jean Williams at jwilliams@esd.ny.gov. Note: If construction is being documented with AIA forms, please be sure that all applicable sections are completed, signed & notarized. EXHIBIT F-3: EQUITY EXPENDITURES AFFIDAVIT Intentionally Deleted EXHIBIT G: PARTICIPATION BY MINORITY GROUP MEMBERS AND WOMEN WITH RESPECT TO STATE CONTRACTS: REQUIREMENTS AND PROCEDURES I. General Provisions A. Empire State Development (ESD) is required to implement the provisions of New York State Executive Law Article 15-A and 5 NYCRR Parts 142-144 ("MWBE Regulations") for all State contracts as defined therein, with a value (1) in excess of $25,000 for labor, services, equipment, materials, or any combination of the foregoing or (2) in excess of $100,000 for real property renovations and construction. B. The Recipient of the subject Grant Disbursement Agreement (the "Recipient" and the "Contract," respectively) agrees, in addition to any other nondiscrimination provision of the Contract and at no additional cost to ESD, to fully comply and cooperate with the ESD in the implementation of New York State Executive Law Article 15-A. . These requirements include equal employment opportunities for minority group members and women ("EEO") and contracting opportunities for certified minority and women-owned business .enterprises ("MWBEs"). Recipient's demonstration of "good faith efforts" pursuant to 5 NYCRR §142.8 shall be a part of these requirements. These provisions shall be deemed supplementary to, and not in lieu of, the nondiscrimination provisions required by New York State Executive Law Article 15 (the "Human Rights Law") or other applicable federal, state or local laws. C. Failure to comply with all of the requirements herein may result in a finding bf nonresponsiveness, non-responsibility and/or a breach of contract, leading to the withholding of funds or such other actions, liquidated damages pursuant to Section VII of this Appendix or enforcement proceedings as allowed by the Contract. II. Contract Goals A. For purposes of this Contract, ESD hereby establishes an overall goal of 25% for Minority and Women-Owned Business Enterprises ("MWBE") participation related to the total value of the project's eligible categories, which total approximately $15,000,000. As such, the MWBE participation in this project shall be no less than $3,750,000. B. For purposes of providing meaningful participation by MWBEs on the Contract and achieving the Contract Goals established in Section II-A hereof, Recipient should reference the directory of New York State Certified MWBEs found at the following internet address: https://ny.newnycontracts.com/ Additionally, Recipient is encouraged to contact the Division of Minority and Woman Business Development ((518) 292-5250; (212) 803-2414; or (716) 846-8200) to discuss additional methods of maximizing participation by MWBEs on the Contract. C. Where MWBE goals have been established herein, pursuant to 5 NYCRR §142.8, Recipient must documert "good faith efforts" to provide meaningful participation by MWBEs as subcontractors or suppliers in the performance of the Contract. In EXHIBIT G: PARTICIPATION BY MINORITY GROUP MEMBERS AND WOMEN WITH RESPECT TO STATE CONTRACTS: REQUIREMENTS AND PROCEDURES accordance with Section 316-a of Article 15-A and 5 NYCRR §142.13, the Recipient acknowledges that if Recipient is found to have willfully and intentionally failed to comply with the MWBE participation goals set forth in the Contract, such a finding constitutes a breach of contract and the Recipient shall be liable to the ESD for liquidated or other appropriate damages, as set forth herein. Ill. Equal Employment Opportunity (EEO) A. Recipient agrees to be bound by the provisions of Article 15-A and th.e MWBE Regulations promulgated by the Division of Minority and Women's Business Development of the Department of Economic Development {the "Division"). If any of these terms or provisions conflict with applicable law or regulations, such laws and regulations shall supersede these requirements. B. Recipient shall comply with the following provisions of Article 15-A: 1. Recipient and subcontractors shall undertake or continue existing EEO programs to ensure that minority group members and women are afforded equal employment opportunities without discrimination because of race, creed, color, national origin, sex, age, disability or marital status. For these purposes, EEO shall apply in the areas of recruitment, employment, job assignment, promotion, upgrading, demotion, transfer, layoff, or termination and rates of pay or other forms of compensation. 2. The Recipient shall submit an EEO policy statement to the ESD with the executed Contract. 3. If Recipient or subcontractor does not have an existing EEO policy statement, the ESD may provide the Recipient or subcontractor a model statement (see EXHIBIT G-1: M/WBE Participation/Equal Employment Opportunity Policy Statement). 4. The Recipient's EEO policy statement shall include the following language: a. The Recipient will not discriminate against any employee or applicant for employment because of race, creed, color, national origin, sex, age, disability or marital status, will undertake or continue existing EEO programs to ensure that minority group members and women are afforded equal employment opportunities without discrimination, and shall make and document its conscientious and active efforts to employ and utilize minority group members and women in its work force. b. The Recipient shall state in all solicitations or advertisements for employees that, in the performance of the Contract, all qualified applicants, will be afforded equal employment opportunities without discrimination because of race, creed, color, national origin, sex, age, disability or marital status. c. The Recipient shall request each employment agency, labor union, or authorized representative of workers with which it has a collective bargaining or other agreement or understanding, to furnish a written statement that such employment agency, labor union, or representative will not discriminate on the basis of race, creed, color, national origin, sex age, EXHIBIT G: PARTICIPATION BY MINORITY GROUP MEMBERS AND WOMEN WITH RESPECT TO STATE CONTRACTS: REQUIREMENTS AND PROCEDURES disability or marital status and that such union or representative will affirmatively cooperate in the implementation of the Recipient's obligations herein. d. C. The Recipient will include the provisions of Subdivisions (a) through (c) of this Subsection 4 and Paragraph "E" of this Section 111, which provides for relevant provisions of the Human Rights Law, in every subcontract !n such a manner that the requirements of the subdivisions will be binding upon each subcontractor as to work in connection with the Contract. EXHIBIT G-2: Staffing Plan To ensure compliance with this Section, the Recipient shall submit a staffing plan to document the composition of the proposed workforce to be utilized in the performance of the Contract by the specified categories listed, including ethnic background, gender, and Federal occupational categories. Recipients shall complete the Staffing plan form and submit it as part of the executed Contract. D. E. EXHIBIT G-3: Work Force Employment Utilization Report ("Workforce Report") 1. Once a contract has been awarded and during the term of Contract, Recipient is responsible for updating and providing notice to the ESD of any changes to the previously submitted Staffing Plan. This information is to be submitted on a quarterly basis during the term of the contract to report the actual workforce utilized in the performance of the contract by the speGified categories listed including ethnic background, gender, and Federal occupational categories. The Workforce Report must be submitted to report this information. 2. Separate forms shall be completed by Recipient and any subcontractor performing work on the Contract. 3. In limited instances, Recipient may not be able to separate out the workforce utilized in the performance of the Contract from Recipient's and/or sub's total workforce. When a separation can be made, Recipient shall submit the Workforce Report and indicate that the information provided related to the actual workforce utilized on the Contract. When the workforce to be utilized on the contract cannot be separated out from Recipient's and/or subcontractor's total workforce, Recipient shall submit the Workforce Report and indicate that the information provided is Recipient's total workforce during the subject time frame, not limited to work specifically under the contract. Recipient shall comply with the provisions of the Human Rights Law, all other State and Federal statutory and constitutional non-discrimination provisions. Recipient and subcontractors shall not discriminate against any employee or applicant for employment because of race, creed (religion), color, sex, national origin, sexual orientation, military status, age, disability, predisposing genetic characteristic, marital status or domestic violence victim status, and shall also follow the requirements of the Human Rights Law with regard to non-discrimination on the basis of prior criminal conviction and prior arrest. EXHIBIT G: PARTICIPATION BY MINORITY GROUP MEMBERS AND WOMEN WITH RESPECT TO STATE CONTRACTS: REQUIREMENTS AND PROCEDURES IV. MWBE Utilization Plan A. The Recipient represents and warrants that Recipient has submitted an: MWBE Utilization Plan (EXHIBIT G-4) either prior to, or at the time of, the execution of the Contract. B. Recipient agrees to use such MWBE Utilization Plan for the performance of MWBEs on the Contract pursuant to the prescribed MWBE goals set forth in Section II-A of this Exhibit. C. Recipient further agrees that a failure to submit and/or use such MWBE Utilization Plan shall constitute a material breach of the terms of the Contract. Upon the occurrence of such a material breach, ESD shall be entitled to any remedy provided herein, including but not limited to, a finding of Recipient non-responsiveness. V. Waivers A. For Waiver Requests Recipient should use the Waiver Request Form (EXHIBIT G-5). B. If the Recipient, after making good faith efforts, is unable to comply with MWBE goals, the Recipient may submit a Request for Waiver form documenting good faith efforts by the Recipient to meet such goals. If the documentation included with the waiver request is complete, the ESD shall evaluate the request and issue a written notice of acceptance or denial within twenty (20) days of receipt. C. If the ESD, upon review of the MWBE Utilization Plan and updated Quarterly MWBE Contractor Compliance Reports determines that Recipient is failing or refusing to comply with the Contract goals and no waiver has been issued in regards to such noncompliance, the ESD may issue a notice of deficiency to the Recipient. The Recipient must respond to the notice of deficiency within seven (7) business days of receipt. Such response may include a request for partial or total waiver of MWBE Contract Goals. VI. Quarterly MWBE Contractor Compliance Report Recipient is required to submit a Quarterly MWBE Contractor Compliance and Payment Report (EXHIBIT G-6) to the ESD by the 101h day following each end of quarter over the term of the Contract documenting the progress made towards achievement of the MWBE goals of the Contract. VII. Liquidated Damages/Recapture - MWBE Participation A. Where ESD determines that Recipient is not in compliance with the requirements of the Contract and Recipient refuses to comply with such requirements, or if Recipient is found to have willfully and intentionally failed to comply with the MWBE partieipation goals, Recipient shall be obligated to pay to the ESD liquidated damages or be subject to recapture of grant proceeds ("Recapture"). B. Such liquidated damages or Recapture shall be calculated as an amount equaling the difference between: EXHIBIT G: PARTICIPATION BY MINORITY GROUP MEMBERS AND WOMEN WITH RESPECT TO STATE CONTRACTS: REQUIREMENTS AND PROCEDURES 1. All sums identified for payment to MWBEs had the Recipient achieved the contractual MWBE goals; and 2. All sums actually paid to MWBEs for work performed or materials supplied un.der the Contract. C. In the event a determination has been made which requires the payment of liql)idated damages (and such identified sums have not been withheld by the ESD) or Recapture, Recipient shall pay such liquidated damages or Recapture to the ESD within si~ty (60) days after they are assessed by the ESD unless prior to the expiration of such sixtieth day, the Recipient has filed a complaint with the Director of the Division of Minority and Woman Business Development pursuant to Subdivision 8 of Section 313 of the Executive Law in which event the liquidated damages or Recapture shall be payable if Director renders a decision in favor of the ESD. Empire State DeveIopment EXHIBIT G-1: OFFICE OF CONTRACTOR AND SUPPLIER DIVERSITY M/WBE PARTICIPATION/ EQUAL EMPLOYMENT OPPORTUNITY POLICY STATEM.ENT l, _ _ _ _ _ _ _ _ _ (CONTRACTOR REPRESENTATIVE), t h e - - - - - - - - (AWARDEE/CONTRACTOR) agree to adopt the following policies with respect to the project being developed or services rendered at M/WBE PARTICIPATION {M/WBE) This organization will and will cause its contractors and subcontractors to take good faith actions to achieve the M/WBE contract participations goals set by the State for that area in which the Statefunded project is located, by taking the following steps: (1) Actively and affirmatively solicit bids for contracts and subcontracts from qualified State certified MBEs or WBEs, including solicitations to M/WBE contractor associations. (2) Request a list of State-certified M/WBEs from ESD's Office of Contractor and Supplier Diversity and solicit bids from them directly. (3) Ensure that plans, specifications, request for proposals and other documents used to secure bids will be made available in sufficient time for review by prospective M/WBEs. (4) Where feasible, divide the work into smaller portions to enhanced participations by M/WBEs and encourage the formation of joint venture and other partnerships among M/WBE contractors to enhance their participation. (5) Document and maintain records of bid solicitation, including those to M/WBEs and the results thereof. Contractor will also maintain records of actions that its subcontractors have ,taken toward meeting M/WBE contract participation goals. (6) Ensure that progress payments to M/WBEs are made on a timely basis so that undue financial hardship is avoided, and that bonding and other credit requirements are waived or appropriate alternatives developed to encourage M/WBE participation. EQUAL EMPLOYMENT OPPORTUNITY POLICY (EEO) (a) This organization will not discriminate against any employee or applicant for employment because of race, creed, color, national origin, sex, age, disability or marital status, will undertake or continue existing programs of affirmative action to ensure that minority group members are afforded equal employment opportunities without discrimination, and shall make and document its conscientious and active efforts to employ and utilize minority group members and women in its work force on state contracts. (b) This organization shall state in all solicitation or advertisements for employees that in the performance of the State contract all qualified applicants will be afforded equal employment opportunities without discrimination because of race, creed, color, national origin, sex disability or marital status. (c) At the request of the contracting agency, this organization shall request each employment ·' ,,_,,,,,: EmpireState,'D eve Io pm en t EXHIBIT G-1: OFFICE OF CONTRACTOR AND SUPPLIER DIVERSITY M/WBE PARTICIPATION/ EQUAL EMPLOYMENT OPPORTUNITY POLICY STATEMENT agency, labor union, or authorized representative will not discriminate on the basis of race, creed, color, national origin, sex, age, disability or marital status and that such union or representative will affirmatively cooperate in the implementation of this organization's obligations herein. (d) This organization will include the provisions of sections (a) through (c) of this agreement in every subcontract in such a manner that the requirements of the subdivisions will be binding upon each subcontractor as to work in connection with the State contract. Agreed on this _ _ _ _ _ day of _ _ _ _ _ _ _ _ _ , 20 By: . ----------------~ (SIGNATURE) Print Name: Title: Minority Business Enterprise Liaison _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ ___,,Name of Designated Liaison) is designated as the Minority Business Enterprise Liaison responsible for administering the Minority and WomenOwned Business Enterprises- Equal Employment Opportunity (M/WBE-EEO) program. M/WBE Contract Goals .% Minority & Women's Business Enterprise Participation related to the total value of the project's eligible categories, which total approximately $15,000,000. EEO Contract Goals % Minority Labor Force Participation % Female Labor Force Participation (Authorized Representative) Print Name: Title: Date: Empire State De veIo pme nt EXHIBIT G-2: OFFICE OF CONTRACTOR AND SUPPLIER DIVERSITY . STAFFING PLAN Submit with Bid or Proposal - Instructions on page 2 Solicitation No.: - Report includes Contractor's/Subcontractor's: Reporting Entity: D D D D Offeror's Name: I Offeror's Address: i Work force to be utilized on this contract Total work force Offeror Subcontractor Subcontractor's Name: Enter the total number of employees for each classification in each of the EEO-Job Categories identified EEO-Job Category Total Work force Work force by Gender Total Total Male Female (F) (M) Work force by Race/Ethnic Identification White (M) Black (F) (M) (F) Hispanic (M) (F) Asian (M) {F) Native American (F) (M) Disabled (F) (M) Veteran (M) (F) Officia Is/Administrators Professionals Technicians Sales Workers Office/Clerical Craft Workers Laborers Service Workers Temporary /Apprentices Totals .. PREPARED BY (Signature): NAME: TITLE: DATE: TELEPHONE NO.: ALTERNATE TEL: EMAIL ADDRESS: Submit completed with bid or proposal M/WBE 101 (Rev 04/2012) General Instructions: All Offerers and each subcontractor identified in the bid or proposal must complete an EEO Staffing Plan (M/WBE 101) and submit it as part of the bid or proposal package. Where the work force to be utilized in the performance of the State contract can be separated out from the contractor's and/or Empire State Dev eI o pme nt . EXHIBIT G-2: OFFICE OF CONTRACTOR AND SUPPLIER DIVERSITY STAFFING PLAN Subcontractor's total work force, the Offerer shall complete this form only for the anticipated work force to be utilized on the State contract. Where the work force to be utilized in the performance of the State contract cannot be separated out from the contractor's and/or Subcontractor's total work force, the Offerer shall complete this form for the contractor's and/or Subcontractor's total work force. Instructions: 1. Enter the Solicitation number that this report applies to along with the name and address of the Offerer. 2. Check off the appropriate box to indicate if the Offerer completing the report is the contractor or a subcontractor. 3. Check off the appropriate box to indicate work force to be utilized on the contract or the Offerers' total work force. 4. Enter the total work force by EEO job category. 5. Break down the anticipated total work force by gender and enter under the heading 'Work force by Gender' 6. Break down the anticipated total work force by race/ethnic identification and enter under the heading 'Work force by Race/Ethnic Identification'. Contact the M/WBE Permissible contact(s) for the solicitation if you have any questions. 7. Enter information on disabled or veterans included in the anticipated work force under the appropriate headings. 8. Enter the name, title, phone number and email address for the person completing the form. Sign and date the form in the designated boxes. RACE/ETHNIC IDENTIFICATION: Race/ethnic designations as used by the Equal Employment Opportunity Commission do not denote scientific definitions of anthropological origins. For the purposes of this report, an employee may be included in the group to which he or she appears to belong, identifies with, or is regarded in the community as belonging. However, no person should be counted in more than one race/ethnic group. The race/ethnic categories for this survey are: o o o o o WHITE (Not of Hispanic origin) All persons having origins in any of the original peoples of Europe, North Africa, or the Middle East. BLACK a person, not of Hispanic origin, who has origins in any of the black racial groups of the original peoples of Africa. HISPANIC a person of Mexican, Puerto Rican, Cuban, Central or South American or other Spanish culture or origin, regardless of race. ASIAN & PACIFIC ISLANDER a person having origins in any of the original peoples of the Far East, Southeast Asia, the Indian subcontinent or the Pacific Islands. NATIVE INDIAN (NATIVE AMERICAN/ALASKAN NATIVE) a person having origins in any of the original peoples of North America, and who maintains cultural identification through tribal affiliation or community recognition. OTHER CATEGORIES: o DISABLED INDIVIDUAL o o VIETNAM ERA VETERAN GENDER any person who: nas a physieal or mental impairment that substantially limits one or more major life activity(ies) has a record of such an impairment; or is regarded as having such an impairment. a veteran who served at any time between and including January 1, 1963 and May 7, 1975. Male or Female EmpireState:o eve Io pm en t EXHIBIT G-3: OFFICE OF CONTRACTOR AND SUPPLIER DIVERSITY WORKFORCE EMPLOYMENT UTILIZATION REPORT Reporting Entity: Contract No.: D D Reporting Period: D D Contractor Subcontractor January 1, 20 July 1, 20 Contractor's Name: Report includes: Contractor's Address: D D I D D - March 31, 20 - September 30, 20 April 1, 20 -June 30, 20 October 1, 20 - December 31, 20 I Work force to be utilized on this contract Contractor/Subcontractor's total work force Enter the total number of employees in each classification in each of the EEO-Job categories identified. EEO - Job Category Officia Is/Administrators Professionals Technicians Sales Workers Office/Clerical Craft Workers Laborers Service Workers Temporary I Apprentices Totals Total Work Force Work force by Gender Male (M) Female (F] Work force by Race/Ethnic Identification White (M] Black (F) (M) (F] Hispanic (M] (F) Asian (M) (F] Native American (F] (M) Disabled (F] (M) Veteran (F) (M) Empire State De v eI o pment EXHIBIT G-3: OFFICE OF CONTRACTOR AND SUPPLIER DIVERSITY WORKFORCE EMPLOYMENT UTILIZATION REPORT Submit the above completed form to: Empire State Development Office of Contractor and Supplier Diversity 633 Third Avenue, 33rd Floor New York, NY 10017 General Instructions: The work force utilization (M/WBE 102) is to be submitted on a quarterly basis during the life of the contract to report the actual work force utilized in the performance of the contract broken down by the specified categories. When the work force utilized in the performance of the contract can be separated out from the contractor's and/or subcontractor's total work force, the contractor and/or subcontractor shall submit a Utilization Report of the work force utilized on the contract. When the work force to be utilized on the contract cannot be separated out from the contractor's and/or subcontractor's total work force, information on the total work force shall be included in the Utilization Report. Utilization reports are to be completed for the quarters ended 3/31, 6/30, 9/30 and 12/31 and submitted to the M/WBE Program Management Unit within 15 days of the end of each quarter. If there are no changes to the work force utilized on the contract during the reporting period, the contractor can submit a copy of the previously submitted report indicating no change with the date and reporting period updated. Instructions for completing: 1. 2. 3. 4. 5. 6. 7. 8. 9. Enter the number of the contract that this report applies to along with the name and address of the Contractor preparing the report. Check off the appropriate box to indicate if the entity completing the report is the contractor or a subcontractor. Check off the box that corresponds to the reporting period for this report. Check off the appropriate box to indicate if the work force being reported is just for the contract or the Contractor's total work force. Enter the total work force by EEO job category. Break down the total work force by gender and enter under the heading 'Work force by Gender' Break down the total work force by race/ethnic background and enter under the heading 'Work force by Race/Ethnic Identification'. Contact the M/WBE Program Management Unit at (518) 474-5513 if you have any questions. Enter information on any disabledor veteran empJoyees included in the work force under the appropriate heading. Enter the name, title, phone number and email address for the person completing the form. Sign and date the form in the designated boxes. Empire State Dev eI o pme nt EXHIBIT G-3: OFFICE OF CONTRACTOR AND SUPPLIER DIVERSITY WORKFORCE EMPLOYMENT UTILIZATION REPORT RACE/ETHNIC IDENTIFICATION Race/ethnic designations as used by the Equal Employment Opportunity Commission do not denote scientific definitions of anthropological origins. For the purposes of this report, an employee may be included in the group to which he or she appears to belong, identifies with, or is regarded in the community as belonging. However, no person should be counted in more than one race/ethnic group. The race/ethnic categories for this survey are: o o o o o (Not of Hispanic origin) All persons having origins in any of the original peoples of Europe, North Africa, or the Middle East. a person, not of Hispanic origin, who has origins in any of the black racial groups of the original peoples of Africa. HISPANIC a person of Mexican, Puerto Rican, Cuban, Central or South American or other Spanish culture or origin, regardless of race. ASIAN & PACIFIC ISLANDER a person having origins in any of the original peoples of the Far East, Southeast Asia, the Indian subcontinent or the Pacific Islands. NATIVE INDIAN (NATIVE AMERICAN/ALASKAN NATIVE) a person having origins in any of the original peoples of North America, and who maintains cultural identification through tribal affiliation or community recognition. WHITE BLACK OTHER CATEGORIES o DISABLED INDIVIDUAL o o VIETNAM ERA VETERAN GENDER has a physical or mental impairment that substantially limits one or more major life activity(ies) has a record of such an impairment; or is regarded as having such an impairment. a veteran who served at any time between and including January 1, 1963 and May 7, 1975. Male or Female any person who: Empire State Dev eI opment EXHIBIT G-4: OFFICE OF CONTRACTOR AND SUPPLIER DIVERSITY M/WBE UTILIZATION PLAN INSTRUCTIONS: This form must be submitted with any bid, proposal, or proposed negotiated contract or within a reasonable time thereafter, but prior to contract award. This MWBE Utilization Plan must contain a detailed description of the supplies and/or services to be provided by each certified Minority and Women-owned Business Enterprise (M/WBE) under the contract. Attach additional sheets if necessary. Federal Employer Identification No. (FEIN): Offeror's Name: Region/Location(s) of Work: Offeror's Address: Solicitation No.: City, State, Zip Code: Project No.: Telephone No.: M/WBE Goals in the Contract: MBE - 1. Certified M/WBE Subcontractors/Suppliers Federal Employer Identification Number (FEIN), Name, Address, Phone, Fax and Email Address. A. 4. 2. Classification NYS ESD CERTIFIED 0MBE DwBE B. NYS ESD CERTIFIED 0MBE DwBE I I 3. Federal ID No. Detailed Description of Work (Attach additional sheets, if necessary) % WBE - % 5. Dollar Value of Subcontracts I Supplies/ Services and intended performance dates of each component of the contract. Empire State De ve l o pme nt EXHIBIT G-4: OFFICE OF CONTRACTOR AND SUPPLIER DIVERSITY M/WBE UTILIZATION PLAN 6. IF UNABLE TO FULLY MEET THE MBE AND WBE GOALS SET FORTH IN THE CONTRACT, OFFEROR MUST SUBMIT A WAIVER REQUEST FORM (FORM E4). TELEPHONE NO.: PREPARED BY ( S i g n a t u r e ) : - - - - - - - - - - - - - - - EMAIL ADDRESS: DATE: Preparer's Name (Print or Type): **FOR OCSD-M/WBE USE ONLY** Preparer's Title: REVIEWED BY: DATE: Date: SUBMISSION OF THIS FORM CONSTITUTES THE OFFEROR'S ACKNOWLEDGEMENT AND AGREEMENT TO COMPLY WITH THE M/WBE REQUIREMENTS SET FORTH UNDER NYS EXECUTIVE LAW, ARTICLE 15-A, 5 NYCRR PART 143, AND THE ABOVE-REFERENCED UTILIZATION PLAN APPROVED? D YES D NO Date: SOLICITATION. FAILURE TO SUBMIT COMPLETE AND ACCURATE INFORMATION MAY RESULT IN A FINDING OF NONCOMPLIANCE AND POSSIBLE TERMINATION OF YOUR CONTRACT. Contract No.: Project No. (if applicable): Contract Award Date: Estimated Date of Completion: Amount Obligated Under the Contract: Description of Work: NOTICE OF DEFICIENCY ISSUED? D YES D NO Date of Issue: NOTICE OF ACCEPTANCE ISSUED? D YES D NO Date of Issue: Empire State Dev eI o pmen t EXHIBIT G-5: OFFICE OF CONTRACTOR AND SUPPLIER DIVERSITY WAIVER REQUEST FORM Waiver Applicant - Offeror I Contractor Name: Fed ID No.: "------------ Address: Solicitation/Contract No.: City, State, Zip Code: M/WBE Goals: MBE: % WBE: % . form and the reguired information, the offeror Lcontractor certifies that ever~ "Good Faith Effort" has been taken to Qromote MLWBE QarticiQation QUrsuant to the MLWBE reguirements set forth under the contract. Review 5 NYCRR §142.8, Contractor's Good Faith Efforts, on Qage 2 of this form for the Qrecise definition of "Good Faith Effort". B~ submitting this Contractor is requesting a: 1. D MBE Waiver -A waiver of the MBE Goal for this procurement is requested. D Total D Partial 2. D WBE Waiver -A waiver of the WBE Goal for this procurement is requested. D Total D Partial 3. D Waiver Pending ESD Certification - (Check here if subcontractors or suppliers of Contractor are not certified M/WBE, but an application for certification has been filed with Empire State Development). Date of such filing with Empire State Development Corporation: _ PREPARED BY {Signature): Date: - SUBMISSION OF THIS FORM CONSTITUTES THE OFFEROR/CONTRACTOR'S ACKNOWLEDGEMENT AND AGREEMENT TO COMPLY WITH THE M/WBE REQUIREMENTS SET FORTH UNDER NYS EXECUTIVE LAW, ARTICLE 15-A AND 5 NYCRR PART 143. FAILURE TO SUBMIT COMPLETE AND ACCURATE INFORMATION MAY RESULT IN A FINDING OF NONCOMPLIANCE AND/OR TERMINATION OF THE CONTRACT. - Name and Title of Preparer (Printed or Typed): Telephone Number: ***** Email Address: FOR M/WBE USE ONLY ***** -----·--- Submit with the bid or proposal or if submitting after award submit to: REVIEWED BY: DATE: --- Empire State Devel~pment Waiver Granted: DYES Office of Contractor and Supplier Diversity 633 Third Avenue, 33'd Floor D New York, New York 10017 MBE: D D Total Waiver D Partial Waiver D ESD Certification Waiver D *Conditional D Notice of Deficiency Issued_ *Comments: WBE: EmpircfState Dev eI o pmen t EXHIBIT G-5: OFFICE OF CONTRACTOR AND SUPPLIER DIVERSITY WAIVER REQUEST FORM 5 NYCRR §142.8 - Contractor's Good Faith Efforts (a) (b) The contractor must document its good faith efforts toward meeting certified minority and women-owned business enterprise utilization plans by providing, at a minimum: (1) Copies of its solicitations of certified minority and women-owned business enterprises and any responses thereto; (2) If responses to the contractor's solicitations were received, but a certified minority or woman-owned business enterprise was not selected, the specific reasons that such enterprise was not selected; (3) Copies of any advertisements for participation by certified minority and women-owned business enterprises timely published in appropriate general circulation, trade and minority or women-oriented publications, together with the listing(s) and: date(s) of the publication of such advertisements; (4) Copies of any solicitations of certified minority and/or women-owned business enterprises listed in the directory of certified businesses; (5) The dates of attendance at any pre-bid, pre-award, or other meetings, if any, scheduled by the State agency awarding the State contract, with certified minority and women-owned business enterprises which the State agency determined were capable of performing the State contract scope of work for the purpose of fulfilling the contract participation goals; (6) Information describing the specific steps undertaken to reasonably structure the contract scope of work for the purpose of subcontracting with, or obtaining supplies from, certified minority and women-owned business enterprises. In addition to the information provided by the contractor in paragraph (a) above, the State agency may also consider the following to determine whether the contractor has demonstrated good faith efforts: (1) Whether the contractor submitted an alternative utilization plan consistent with the subcontract or supplier opportunities in the contract; (2) The number of certified minority and women-owned business enterprises in the region listed in the directory of certified businesses that could, in the judgment of the State agency, perform work required by the State contract scope of work; (3) The actions taken by the contractor to contact and assess the ability of certified minority and women-owned business enterprises located outside of the region in which the State contract scope of work is to be performed to participate on the State contract; (4) Whether the contractor provided relevant plans, specifications or terms and conditions to certified minority and women-owned business enterprises sufficiently in advance to enable them to prepare an informed response to a contractor request for participation as a subcontractor or supplier; (5) The terms and conditions of any subcontract or provision of suppliers offered to certified minority or women-owned business enterprises and a comparison of such terms and conditions Empire State De v e I o p me nt EXHIBIT G-6: OFFICE OF CONTRACTOR AND SUPPLIER DIVERSITY M/WBE CONTRACTOR COMPLIANCE AND PAYMENT REPORT PROJECT SPONSOR/DEVELOPER (or "REPORTING COMPANY"): ESD/OCSD REPRESENTATIVE: FEDERAL EJN #: PROJECT NAME: ADDRESS: PROJECT#: TOWN/COUNTY/ZIP: PROJECT START DATE: CONTACT PERSON: PERCENT COMPLETE: TELEPHONE: ACTUAL COMPLETION DATE: EMAIL: Attach M/WBE executed contracts, final lien waivers, cancelled checks, etc., or other documentation describing the "Good Faith Efforts" taken to achieve M/WBE program. This report should be completed and signed by an officer of the Reporting Company. M/WBE SUBCONTRACTOR PRIME CONTRACTOR (Federal EIN #, Firm's Name, Address, Contact Person, Title and Phone# with area code) CONTRACT AMOUNT (Federal EIN #,Subcontractor Name, Address, Contact Person, Title and Phone # with area code) M/WBE SCOPE OF SERVICES CONTRACT AMOUNT M/WBE PAYMENTS ON CURRENT REPORT M/WBE PAYMENTS PREVIOUSLY REPORTED TOTAL M/WBE PAYMENTS TO DATE ... .... .. CERTIFICATION: I, (Print Name), the (Title) of the Reporting Company above, do certify that {i) I have read this Compliance Report and (ii) to the best of my knowledge, information and belief, the information contained herein is complete and accurate. SIGNATURE: ~~~~~~~~~~~~~~~~~~~~~~ DATE: ~~~~~~~~~~~~~ Empire State Deve I op men t EXHIBIT G-6: OFFICE OF CONTRACTOR AND SUPPLIER DIVERSITY M/WBE CONTRACTOR COMPLIANCE AND PAYMENT REPORT SUBMIT REPORT TO: OFFICE OF CONTRACTOR AND SUPPLIER DIVERSITY EMPIRE STATE DEVELOPMENT 633 THIRD AVENUE, 33rd FLOOR NEW YORK, NY·10017 Completed Exhibits may also be emailed directly to OCSD at ocsd@esd.ny.gov. All email submissions must include the name and contact information of the individual or firm submitting the information. QUESTIONS? Please contact the OCSD's Project Managers or email the division at ocsd@esd.ny.gov. Vikas Gera Project Manager, OCSD {212) 803-3244 vgera@esd.ny.gov Denise Ross Project Manager, OCSD {212) 803-3226 dross@esd.ny.gov Diane Kinnicutt Dept. of Economic Dev. (OED) (518) 292-5727 dkinnicutt@esd.ny.gov Finger Lakes Western New York NYC- Brooklyn & Queens Long Island All ESD Subsidiaries Southern Tier Mohawk Valley Mid-Hudson Region NYC-Manhattan, Staten Island & Bronx North Country Capital District Central New York OED Procurement EXHIBIT H: REPORT OF EMPLOYMENT NEW YORK STATE URBAN DEVELOPMENT CORPORATION d\b\a EMPIRE STATE DEVELOPMENT Fort Schuyler Management Corporation/AMR! Capital, Project NumberY365 EXHIBIT H: REPORT OF EMPLOYMENT {WITH COMPANY'S NYS FORM 45 AITACHED} Complete EITHER Table A (as Annual Report*) OR Table B (with every Payment Request)* * Attach NYS-45 form including cover page and NYS-45-ATI attachment (with blocked out social security numbers and Location(s} indicated as necessary. If the reported employment figures on Exhibit H vary materially from those reported to the New York State Department of Labor on NYS-45, please attach an explanation identifying reasons for any difference. FULL.,TIME PERMANENT EMPLOYEES For purposes of this Agreement, a Full-time Permanent Employee shall mean (a) a full-time, permanent, private-sector employee on the Grantee's payroll, who has worked at the Project Location(s) for a minimum of thirty-five hours per week for not less than four consecutive weeks and who is entitled to receive the usual and customary fringe benefits extended by Grantee to other employees with comparable rank and duties; or (b) two part-time, permanent, private-sector employees on Grantee's payroll, who have worked at the Project Location(s) for a combined minimum of thirty-five hours per week for not less than four consecutive weeks and who are entitled to receive the usual and customary fringe benefits extended by Grantee to other employees with comparable rank and duties. Table A: Annual Report due every February 1 for prior calendar year* FULL-TIME PERMANENT EMPLOYEES As of Grantee's last payroll date on or prior to the end of the designated quarter ~- March 31, 20_ -- June 30, 20_ Sept. 30, 20- Dec.31,20_ ANNUAL AVERAGE (Based on the four quarterly numbers) At Project Location(s) At Other New York Location(s)s (if applicable) -- -=~' Table B: With every Payment Request as of FULL-TIME PERMANENT EMPLOYEES __)~- (date of request) ~ At Project Location(s) At Other New York Location(s)s (if applicable) - The information included herein is correct to the best of my knowledge and belief. Signature: _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ Date: _ _ _ _ _ _ _ _ _ _ __ Print Name and T i t l e : - - - - - - - - - - - - - - - - - - - - - - - - - - - Any false statement herein m_ay cause the borrower or grantee to be in default under its grant disbursement agreement with ESD. NEW YORK STATE URBAN DEVELOPMENT CORPORATION d\b\a EMPIRE STATE DEVELOPMENT CORPORATION Fort Schuyler Management Corporation/ AM RI Capital, Project Number Y365 EXHIBIT H-1 REPORT OF EMPLOYMENT AFFIDAVIT IN LIEU OF AUTHORIZATION TO VIEW FORM NYS-45 STATE OF NEW YORK ) ) SS.: COUNTY OF ERIE ) The Undersigned, being duly sworn, deposes and says: I, of 1. - - - - - - - - - - - -, am the - - - - - - - - - - - - - (the "Grantee"), a corporation that is duly organized and validly existing under the laws of _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ ___, and is authorized to do business and is in good standing in the. State of New York. 2. I have read and know the contents of a certain Grant Disbursement Agreement (the "Agreement") executed by and between New York State Urban Development Corporation d/b/a Empire State Development Corporation ("ESD") and the Grantee dated the. _ _ day of ---------~'202 . 3. The Project Location(s), as set forth in the Agreement, are Temporary: The Jacobs Institute, 875 Ellicott Street, 5th Floor, Buffalo, and Permanent: 1001 Main Street, Buffalo. 4. The term "Tenant" used herein is defined as individuals or entities that have entered into a lease with the Grantee and occupy space within the Buffalo Medical Innovation and Commercialization Hub. The Grantee shall only rent to Tenants in compliance with the Charter and Code of the City of Buffalo, Chapter 511 (Zoning), Article XVII (Downtown Area Zone), Sections 511-71 (DO Downtown Opportunity District) and 511-75 (Representative permitted and prohibited uses). 5. I have received and reviewed Employment Documentation for this Employment Reporting Year, which has been submitted by Tenants and includes solely job numbers concerning the Project Location(s). This Employment Documentation reviewed includes, but is not limited to, NYS 45's, payroll registers, and/or payroll records, and, under limited circumstances, Building Access Records. I have attached these Documents to this Affidavit and is hereby incorporated as "Exhibit A," I include a spreadsheet listing the quarter by quarter Full-Time Permanent Employee figure ("FTE") for each Tenant at the Project Location(s) for Employment Reporting Year . I also include as part of Exhibit A the FTE figure of Company for this Employment Reporting Year. The term FTE used herein is set forth in the Agreement. EXHIBIT H-1, continued 6. I certify that information contained in Exhibit A is a clear and accurate representation of the job numbers at the Project Location(s). I understand that any misrepresentation contained in Exhibit A submitted by the Grantee serves as a default under the terms of the Agreement, and therefore may result in ESD demanding repayment of all or a portion of the Grant. 7. I am aware that the swearing of a false oath is a Class A misdemeanor and may be a Class E felony. Signature Subscribed and sworn to before me , 20 this _ _ day of Notary Public EXHIBIT I: SPECIAL PROVISIONS In the event of any conflict between Exhibit A of this Agreement and any other provisions of this Agreement, the terms of such other provisions shall govern. The following sections of the Terms and Conditions of this Agreement are waived: Section 2; Section 3(e); Section 4(c); Section 9(a)(iv) and Section 9(a)(vii). All references to "Project Location(s)" shall mean "Project Locations." Paragraph 8(i) shall mean that Grantee and/or Beneficiary shall maintain or cause to be maintained business operations at the Project Location(s) for the term of this Agreement. Paragraph 23 is added to Terms and Conditions, as follows: 23. Joint and Several Liabilities (a) As used herein, the term Grantee shall include all signatories hereto, if more than one, other than ESD. In such event the obligations, representations and warranties of Grantee hereunder shall be joint and several. (b) As used herein, the term Beneficiary shall include all signatories hereto, if more than one, other than ESD. In such event the obligations, representations and warranties of Beneficiary hereunder shall be joint and several. All future Beneficiaries of the Agreement, will be added via an Amendment to this Agreement. 0 0 o-.\/o o F~fschuvler MAtli\G~M EtH conP!nl\TIOtl May 27, 2014 Empire State Development 95 Perry Street, Suite 500 Buffalo, New York 14203-3030 Attn: Ms. Jean Williams, Senior Project Manager Re: Fort Schuyler Management Corporation/AMR! Capital, Project #Y365 Ladies and Gentlemen: I have acted as counsel to Fort Schuyler Management Corporation on behalf of the State University of New York College of Nanoscale Science and Engineering ("Grantee"), a New York not-for-profit corporation, in connection with the signing and delivery of the Grant Disbursement Agreement ("Agreement") dated May 13, 2014 between New York State Urban Development Corporation d/b/a Empire State Development ("ESD") and the Grantee with Albany Molecular Research, Inc. as Beneficiary. This opinion letter is being furnished to you at my client's request pursuant to Section 3(a) of the Agreement. Capitalized terms used but not defined herein shall have the meanings assigned thereto in the Agreement. In rendering the opinions set forth herein, I have examined originals, or copies certified or otherwise identified to my satisfaction, of such documents, corporate records and other instruments as I have deemed relevant, appropriate or necessary to the rendering of my opinions. In rendering the opinions expressed below, I have assumed the legal capacity of all natural persons signing documents and that the signatures of persons signing all documents in connection with which this opinion letter is rendered are genuine, all documents submitted to me as originals or duplicate originals are authentic and all documents submitted to me as copies, whether certified or not, conform to authentic original documents. Additionally, I have assumed and relied upon the accuracy and completeness of all certificates and other statements, documents, records, financial statements and papers reviewed by me, and the accuracy and completeness of all representations, warranties, confirmations, schedules and exhibits contained in the Agreement, with respect to the factual matters set forth therein. As to any facts material to the opinions expressed herein that I did not independently establish or verify, I have relied upon oral or written statements and representations of officers and other representatives of the Grantee and of certain public officials. I have also assumed and relied upon the accuracy and completeness of all certificates and other statements, representations, documents, records, financial statements and papers reviewed by me, and the accuracy and completeness of all representations, warranties and exhibi.ts contained in the Agreement with respect to the factual matters set forth therein. Based upon the foregoing and subject to the assumptions, qualifications and other matters set forth herein, I am of the opinion that: 1. The Grantee is validly existing and in good standing under the laws of the State of New York and has full power and authority to sign and deliver the Agreement and to perform its obligations thereunder. 2. The Agreement has been duly authorized, signed and delivered by the Grantee and (assuming its due authorization, signing and delivery by ESD) is binding on and enforceable against the Grantee in accordance with its terms, subject to applicable bankruptcy, insolvency reorganization, arrangement, liquidation, moratorium, fraudulent conveyance or transfer and other similar laws relating to or affecting creditors' rights generally from time to time in effect and to general principles of equity (regardless of whether enforcement is sought in a proceeding in equity or at law), and except as rights under the Agreement to indemnity and contribution may be limited by federal or state laws. I am admitted to practice in the State of New York and I express no opinion as to any matters governed by any laws other than the laws of the State of New York. The opinions expressed herein that are based on the laws of the State of New York are limited to the laws generally applicable in transactions of the type covered by the Agreement. This opinion letter is for the benefit solely of ESD and not for the benefit of any other person. I am opining herein only as of the date hereof and I undertake no, and disclaim any, obligation to advise you of any changes in any matter set forth herein, regardless of whether changes in such matters come to my attention after the date hereof. No attorney~client relationship exists or has existed with ESD by reason of my preparation, signing and delivery of this opinion letter. By providing this opinion letter and permitting reliance hereon by you, I am not acting as your counsel and have not assumed any responsibility to advise you with respect to the adequacy of this opinion letter for your purposes. This opinion letter may not be relied upon by any other person or for any other purpose or used, circulated, quoted or otherwise referred to for any other purpose. (}_::J:YJr.ully yours, ·---=> ''"(~·arl J. --~-~--- empf Ill, Esq. CNSE Associate Vice President for Policy and Regulatory Affairs I FORTSCHUY1 Client#· 27185 CERTIFICATE OF LIABILITY INSURANCE ACORD"' DATE (MM/DD/YYYY) 05/28/2014 THIS CERTIFICATE IS ISSUED AS A MATTER OF INFORMATION ONLY AND CONFERS NO RIGHTS UPON THE CERTIFICATE HOLDER. THIS CERTIFICATE DOES NOT AFFIRMATIVELY OR NEGATIVELY AMEND, EXTEND OR ALTER THE COVERAGE AFFORDED BY THE POLICIES BELOW. THIS CERTIFICATE OF INSURANCE DOES NOT CONSTITUTE A CONTRACT BETWEEN THE ISSUING INSURER(S), AUTHORIZED REPRESENTATIVE OR PRODUCER, AND THE CERTIFICATE HOLDER. IMPORTANT: If the certificate holder Is an ADDITIONAL INSURED, the-pollcy(ies) must be endorsed. If SUBROGATION IS WAIVED, subject to the terms and conditions of the policy, certain policies may require an endorsement. A statement on this certificate does not confer rights to the certificate holder In lieu of such endorsement(s). CONTACT PRODUCER NAME: Amsure ·a Division of ATCFSI =iJAX' iAJc, No\: 518 458·8390 _r,tJ8~J;~~t)= 51~--4_58-faoo ~--E-MAIL 12 Computer Drive West [IDDRES~ ·-- --- - -------- -------- PO Box 15044 Albany, NY 12212-5044 INSURER(S) AFFORDING COVERAGE INSURER A: Selective Insurance INSURED INSURERS: INSURER C: Fort Schuyler Mgmt.Corp. Att: Alicia Dicks 100 Seymour Road Utica, NY 13502-0009 NAIC# 39926 INSURER D: INSURE.RE: INSURER F: REVISION NUMBER: CERTIFICATE NUMBER: COVERAGES THIS IS TO CERTIFY THAT THE POLICIES OF INSURANCE LISTED BELOW HAVE BEEN ISSUED TO THE INSURED NAMED ABOVE FOR THE POLICY PERIOD INDICATED. NOTWITHSTANDING ANY REQUIREMENT, TERM OR CONDITION OF ANY CONTRACT OR OTHER DOCUMENT WITH RESPECT TO WHICH THIS CERTIFICATE MAY BE ISSUED OR MAY PERTAIN, THE INSURANCE AFFORDED BY THE POLICIES DESCRIBED HEREIN IS SUBJECT TO ALL THE TERMS, SHOWN MAY- -HAVE BEEN REDUCED BY PAID CLAIMS. EXCLUSIONS AND CONDITIONS OF SUCH POLICIES. LIMITS ----------ADDL su8R INSR - ~iCYEFFn ~POLICYEX~ LIMITS TYPE.OF INSURANCE POLICY-NUMBER MM/_()D/YYYY MM/DD/YYYY 1 LTR lNSR 'f'IVD ------ _ GENERAL LIABILITY s1,ooo,ooo S1929019 04/01/2014 04/01/201 E EACH OCCURRENCE A ,__ -D~MAGE J?i RENTED X COMMERCIAL GENERAL LIABILITY s500 ooo P EMISE Ea occurrence) ,__ _MED EXP (Any one person) s15 ooo CLAIMS-MADE OCCUR PERSONAL & ADV INJURY $1,000,000 ,__ GENERAL AGGREGATE s2,ooo,ooo ,__ GEN'L AGGREGATE LIMIT APPLIES PER: PRODUCTS - COMP/OP AGG s2,ooo,ooo D [!] n n POLICY ~rg: AUTOMOBILE LIABILITY ,___ ,___ ANY AUTO ALL OWNED ,___ AUTOS ,__ HIRED AUTOS - - - n LOG -- SCHEDULED AUTOS NON-OWNED AUTOS -- -- -Pr:~ A ~ UMBRELLA LIAB X OCCUR EXCESS LIAB CLAIMS-MADE A $ --- ~~~~~~;~11SINGLE LIMIT $ BODlLY INJURY (Per person) $ BODlLY INJURY (Per accident) $ -PROPERTY DAMAGE s (f'er accident) --- --- oEo I xi RETENT10Ns10000 WORKERS COMPENSATION AND EMPLOYERS' LIABILITY yI N ANY PROPRIETORIPARTNERIEXECUTIVE[lli OFFICERIMEMBER EXCLUDED? N N/A (Mandat9ry In NH) If yes, describe under DESCRIPTION OF OPERATIONS below Property ------ -- S1929019 -- -- -- -----·--- s - - --- 04/01/2014 04/01/20H ~CH OCCURRENCE s15 000,000 s15,ooo,ooo AGGRE~_ATE ------------- ---- WC7938822 04/01/2014 04/01/201! -- $ x l~~.,~~11W.;:c I l~~H- E.L. EACH ACCIDENT s100 ooo E.l. DISEASE - EA EMPLOYEE s100,ooo E.l. DISEASE - POLICY LIMIT $500,000 --------S1929019 A !05/01 /2014 04/01/201! Blanket Bldg/Contents $6,087,823 Blkt Bus.Inc. $250,000 DESCRIPTION OF OPERATIONS I LOCATIONS I VEHICLES (Attach ACORD 101, Additional Remarks Schedule, If more space ls required) Project Name: Fort Schuyler Management Corporation/AMR! Capital, The Jacobs Institute, 875 Ellicott Street, Buffalo, NY 14203 I New York State Urban Development d/b/a Empire State Development is named as general liability additional insured on a primary and non-contributory basis as required by written contract. Waiver of Subrogation applies to general liability as required by written contract. CERTIFICATE HOLDER CANCELLATION New York State Urban Development Corporation d/b/a Empire State Development 633 Third Avenue New York, NY 10017 I ACORD 25 (2010/05) 1 of 1 #S143332/M143331 --~---·---- SHOULD ANY OF THE ABOVE DESCRIBED POLICIES BE CANCELLED BEFORE THE EXPIRATION DATE THEREOF, NOTICE WILL BE DELIVERED IN ACCORDANCE WITH THE POLICY PROVISIONS. AUTHORIZED REPRESENTATIVE ~J-~@_ © 1988-2010 ACORD CORPORATION. All rights reserved. The ACORD name and logo are registered marks of ACORD KAO - FORT SCHUYLER MANAGEMENT C:ORP. 1005 35 STATE ST. ALBANY, NY 12207 DATE 6~vo~~~~E_e~vtj2Jl~,sta~e/ L)euc:~ lo.e vv1t?t"1 f- L~}_?l':/~2Ld: 0 I~- . . . ·--···· . . ___ _j $ • I-BOO·KEY2YOU' Key.com~ FOR _________________ ... 576 5oo/15G. s.f f1vebi>_nd{fQtthq\)~av1drl111 ek1 tJ()o~ftt.f f1f)}1)~~L)(P.!Jd.52t~'60LLARs KeyBank National Association Aloany, New York 12207 29-71213 0 Empire State Dev eI opment EXHIBIT G-1: OFFICE OF CONTRACTOR AND SUPPLIER DIVERSITY M/WBE PARTICIPATION/ EQUAL EMPLOYMENT OPPORTUNITY POLICY STATEMENT 1, Ahe, ct Ot' cVs (coNrnAcrnR REPRESENTATIVE), the /;;tl\C (AWARDEE/coNTRAcrnRJ agree to adop,yt:he following policies with respect to the project being developed or services rendered at /-flVl (L_L . . M/WBE PARTICIPATION (M/WBE) This organization will and will cause its contractors and subcontractors to take good faith actions to achieve the M/WBE contract participations goals set by the State for that area in which the Statefunded project is located, by taking the following steps: {1) Actively and affirmatively solicit bids for contracts and subcontracts from qualified State certified MBEs or WBEs, including solicitations to M/WBE contractor associations. (2) Request a list of State-certified M/WBEs from ESD's Office of Contractor and Supplier Diversity and solicit bids from them directly. (3) Ensure that plans, specifications, request for proposals and other documents used to secure bids will be made available in sufficient time for review by prospective M/WBEs. (4) Where feasible, divide the work into smaller portions to enhanced participations by M/WBEs and encourage the formation of joint venture and other partnerships among M/WBE contractors to enhance their participation. (5) Document and maintain records of bid solicitation, including those to M/WBEs and the results thereof. Contractor will also maintain records of actions that its subcontractors have taken toward meeting M/WBE contract participation goals. {6) Ensure that progress payments to M/WBEs are made on a timely basis so that undue financial hardship is avoided, and that bonding and other credit requirements are waived or,appropriate alternatives developed to encourage M/WBE participation. EQUAL EMPLOYMENT OPPORTUNITY POLICY (EEO) (a) This organization will not discriminate against any employee or applicant for employment because of race, creed, color, national origin, sex, age, disability or marital status, will undertake or continue existing programs of affirmative action to ensure that minority group members are afforded equal employment opportunities without discrimination, and shall make and document its conscientious and active efforts to employ and utilize minority group members and women in its work force on state contracts. {b) This organization shall state in all solicitation or advertisements for employees that in the performance of the State contract all qualified applicants will be afforded equal employment opportunities without discrimination because of race, creed, color, national origin, sex disability or marital status. (c) At the request of the contracting agency, this organization shall request each employment W•9 Request for Taxpayer Identification Number and Certification Form (Rev November 2005) Dep::i.r1menl ol lhi: Treasory lrot Address (number, street, and apt. or sUJte no.) 100 Se no.n.. px:o£it 0 Exempt from backup withholding Requester's name and address (optional) our Road City, state, and ZIP code Uti~t:Lt New York 13502 List account number(s) here (optronnl) C/) Taxpayer Identification Number (TIN) Enter your TIN in tM appropriate box. The TIN provided must match the name given on Line 1 to avoid backup withnolcling. For individuals, this is your social security number (SSN). However, for a resident alii;n, sol& proprietor, or disrngarded eniity, see the Part I instructions on page 3. For other entities, it Is your employer identific::ition number (EIN). If you do not have a number, see How to get a TIN on page 3. Social secur lty number Nol.e. Ii the account iE in more than one name, see the chart on page 4 for guidelines on whose number to enter. Employer identification number I ±I +I 2 7 1 4 5 9 3 ~rtific_a_t_io_n_____________________ - - - - - - - - - - - - - - - - - - - Under penalties of perjury, I certify that: 1. The number shown on this form is my correct taxpayer identification number (or I am waiting for a number to be issued to me), and 2 I arn not suhject to backliP withholding because; (a) I am exempt from backup withholding, or (b) I have not been notified by the Internal Revenue Service (IRS) that I am subject to backup withholding as a result of a failure to report all interest or dividends, or (c) the IRS has notified me that I am no longer subject to backup withholding, and 3. I am a U.S. person (in8luding a U.S. resident alien). Certification instructions. You must cross out item 2 above if you ha.ve been rotified by the IRS that you are currently subject. to backup wi'.hholding because you have failed to report all interest and dividends on your, tax return. For real estate transactions, item 2 does not apply. For mortgage interest paid, acquisition or abandonment of secured property, cancellation of debt, contributions to an individual retirement arrangement (IRA), and generally, payments other than interest and dividends, you are not required to sign the Certification, but· you must 1xov1de your correct TIN. (See the instructions on page 4.) s;gn:-T~''""~rool ~1 y.s. ~ere person ~ Purpose of Form n' ~ ,.\ C · A person who is required to file an information return with the IRS, must obtain your correct taxpayer identification number (TIN) to report, for example, income paid to you, real estate transactio~s, mortgage interest you paid, acquisition or ",, abandonment of secured property, cancellation of debt, or contributions you made to an IRA. U.S. person. Use Form W-9 only if you are a U.S. person (including a resident alien), to provide your correct TIN to the person requesting it (the requester) and, when 9pplicable, to: 1. Certify that the TIN you are giving is correct (or you are waiting for a number to be issued), 2. Certify that you are not subject to backup withholding, or 3. Claim exemption from backup withholding if you are a U.S. exempt payee. In 3 above, if applicable, you are also certifying that as a U.S. person, your allocable share or any partnership income from a U.S. trade or business is not subject to the withholding tax on foreign partners' share of effectively connected income. Note. If a requester gives you a form other than Form W-9 to request your TIN, you must use the requester's form if it is substantially similar to this Form W-9. For federal tax purposes, you are considered a person if you are: • An individual who Is a citizen or resident of the United States, • A partnership, corporation, company, or association created or organized in the United States or Linder the laws of the United States, or • Any estn\e (other than a foreign estate) or trust. See Regulations sections 301. 7701 ·6(a) and ?(a) for additional information. Special rules for partnerships. Partnerships that conduct a trade or business in the United States are generally required to pay a withholding tax on any foreign partners' share of income from such business. Further, in certain cases where a Form W-9 has not been received, a partnership is required to presume that a partner is a foreign person, and pay the withholding tax. Therefore, if you are a U.S. person that is a partner in a partnership conducting a trade or business in the United States, provide Form W-9 to the partnership to establish your U.S. status and avoid withholding on your share of partnership income. The person who gives Form W-9 to the partnership tor purposes of establishing its U.S. status and avoiding withholding on its allocable share of net income from the partnership conducting a trade or business in the United States is in the following cases: • The U.S. owner of a disregarded entity and not the entity, Cal. No. 10231X Form W-9 (Rev. 11-2005) 0 0 0 0 0 0 0 Fort Schuyler N~ r:on~·\il/1>.11011 May 22, 2014 Empire State Development Corporation 95 Perry Street Suite 500 Buffalo, NY 14203-3030 RE: Certification of Wire Transfer Information This letter is certification from the Fort Schuyler Management Corporation of its financial institution wire transfer information as listed below: Bank name: Account name: Account#: ABA#: Key Bank Fort Schuyler Management Corporation 329681110451 021300077 If there any questions please contact me at 315 792-7306, adick_s@ftsmc.org Sincerely, Alicia Dicks President ,~~Development July 23, 2014 .~ Ms. Alicia Dicks President Fort Schuyler Management Corporation 100 Seymour Drive Utica, NY 13502 Re: Fort Schuyler Management Corporation/RiverBend Park Capital, Project #2328 Dear Ms. Dicks: I am pleased to enclose four signed Grant Disbursement Agreements {"GDA") for the above- referenced project. Please execute all copies and return one original to Jean Williams, your Project Manager, within 30 days, with the following attach.ments: • • A completed IRS W-9 form necessary for taxpayer identification (use enclosed form). Opinion of Counsel letter, as required by the GDA. Exhibit G-1, M/WBE Participation/ Equal Opportunity Policy Statement. Wire transfer information in the form of a Jetter from a financial officer of the company certifying the bank name, account name, account number and ABA routing number. A check for 1% of the grant amount ($1,070,000) and reimbursement of out-of-pocket public hearing-related expenses in the amount of $915.80, for a total of $1,070,915.80. Copies of all insurance policies (or certificates thereof) for the required insurance coverages as stated in Section 12 of the GDA. Please be advised that disbursement offunds may occur after ESD receives the grant funds and receives one fully executed GDA and all required documentation in a form acceptable to ESD, and any fees or reimbursement for expenses specified, as consistent with all relevant exhibits of the Grant Disbursement Agreement. Please contact Jean Williams, your Project Manager, at {716) 846-8243 should you have any questions. We look forward to working with you on this project. Enclosures C: Jean Williams Christina Orsi 633 Third Avenue New York, NY 10017 www.esd~_y J (212) 803-3100