Town of Colonie Industrial Development Agency March 30, 2020 AGENDA 1. Call meeting to order 2. Roll call 3. Proposed resolution appointing Chief Executive Officer (Executive Director) 4. Approval of Minutes (1/27/2020) 5. Governance Committee Report a. Board self-evaluations b. Recommendation with respect to: i. 2019 PARIS Reports (including Annual Assessments of “Active Projects”) ii. Mission Statement and Performance Measurements Report – 2019 6. Audit Committee Report a. Recommendation with respect to: i. 2019 Audited Financial Statements ii. Assessment of the Effectiveness of Internal Controls iii. Annual Investment Report 7. Finance Committee Report a. Recommendation with respect to: i. Investment Policy ii. Annual Investment Report iii. Procurement Policy 8. Chief Executive Officer Report 9. Chief Financial Officer Report 10. Annual Assessment of “Active Projects” 11. Review: (i) reports and (ii) any input from “affected tax jurisdictions” with respect to proposed changes to the Uniform Tax Exemption Policy; proposed resolution approving reports and revised Uniform Tax Exemption Policy 12. Old Business 13. New Business 1 20139779.2 Town of Colonie Industrial Development Agency March 30, 2020 AUDIT COMMITTEE AGENDA 1. Call meeting to order 2. Roll call 3. Review: a. 2019 Audited Financial Statements b. Assessment of the Effectiveness of Internal Controls c. Annual Investment Report 4. New Business 5. Old Business 20140210.2 Town of Colonie Industrial Development Agency March 30, 2020 FINANCE COMMITTEE AGENDA 1. Call meeting to order 2. Roll call 3. Review: a. Investment Policy b. Annual Investment Report c. Procurement Policy 4. New Business 5. Old Business 20140385.2 Town of Colonie Industrial Development Agency March 30, 2020 GOVERNANCE COMMITTEE AGENDA 1. Call meeting to order 2. Roll call 3. Review: a. Board self-evaluations b. 2019 PARIS Reports (and Annual Assessments of “Active Projects”) c. Mission Statement and Performance Measurements Report – 2019 4. New Business 5. Old Business 20140394.2 A regular meeting of the Town of Colonie Industrial Development Agency (the “Agency”) was convened in public session, remotely by conference call or similar service pursuant to the New York State Executive Order 202.1, on March 30, 2020 at 5:15 p.m., local time. The meeting was called to order by the (Vice) Chairman and, upon roll being called, the following members of the Agency were: PRESENT: ABSENT: The following persons were also present: Christopher Kelsey Chief Financial Officer Melissa C. Bennett, Esq. Barclay Damon LLP The following resolution was offered by _______________, seconded by _______________, to wit: RESOLUTION APPOINTING CHIEF EXECUTIVE OFFICER (EXECUTIVE DIRECTOR). WHEREAS, the Town of Colonie Industrial Development Agency (the “Agency”) is authorized and empowered by the provisions of Chapter 1030 of Laws of 1969 of New York, constituting Title 1 of Article 18-A of the General Municipal Law, Chapter 24 of the Consolidated Laws of New York, as amended (the “Enabling Act”) and Chapter 594 of the Laws of 1980 of New York, as amended, constituting Section 911-d of said General Municipal Law (said Chapter and the Enabling Act being hereinafter collectively referred to as the “Act”) to promote, develop, encourage and assist in the acquiring, constructing, renovating, improving, maintaining, equipping and furnishing of industrial, manufacturing, warehousing, commercial, research, and recreation facilities, among others, for the purpose of promoting, attracting and developing economically sound commerce and industry to advance the job opportunities, health, general prosperity and economic welfare of the people of the State of New York, to improve their prosperity and standard of living, and to prevent unemployment and economic deterioration; and WHEREAS, pursuant to the By-Laws of the Agency, the members of the Agency appoint the chief executive officer of the Agency; and -1- 20177141.2 WHEREAS, pursuant to an agreement with the Town of Colonie (the “Town”), the Town provides the Agency with support staff from various departments within the Town; and WHEREAS, Sean Maguire was hired by the Town as the Director of the Planning and Economic Development Department of the Town; and WHEREAS, by virtue of his position at the Town, the members of the Agency desire to appoint Sean Maguire as Executive Director, being the chief executive officer of the Agency; NOW, THEREFORE, BE IT RESOLVED BY THE MEMBERS OF THE TOWN OF COLONIE INDUSTRIAL DEVELOPMENT AGENCY AS FOLLOWS: Section 1. The Agency hereby appoints Sean Maguire as Executive Director, being the chief executive officer of the Agency. Section 2. This Resolution shall take effect immediately. The question of the adoption of the foregoing Resolution was duly put to a vote on roll call, which resulted as follows: AYE NAY ABSENT Carm Basile Alison Blessing Peter Gannon John Kearney Eric Phillips Gary Rinaldi Benjamin Syden The Resolution was thereupon declared adopted. -2- 20177141.2 STATE OF NEW YORK ) ) SS.: COUNTY OF ALBANY ) I, the undersigned Secretary of the Town of Colonie Industrial Development Agency (the “Agency”), do hereby certify that I have compared the foregoing extract of the minutes of the meeting of the members of the Agency, including the Resolution contained therein, held on March 30, 2020 with the original thereof on file in my office, and that the same is a true and correct copy of said original and of such Resolution set forth therein and of the whole of said original so far as the same relates to the subject matters therein referred to. I FURTHER CERTIFY that (A) all members of the Agency had due notice of said meeting; (B) said meeting was in all respects duly held; (C) pursuant to Article 7 of the Public Officers Law (the “Open Meetings Law”), said meeting was open to the general public, and due notice of the time and place of said meeting was duly given in accordance with such Open Meetings Law; and (D) there was a quorum of the members of the Agency present throughout said meeting. I FURTHER CERTIFY that, as of the date hereof, the attached Resolution is in full force and effect and has not been amended, repealed or rescinded. IN WITNESS WHEREOF, I have hereunto set my hand this 30th day of March, 2020. Secretary -3- 20177141.2 A regular meeting of the Town of Colonie Industrial Development Agency (the “Agency”) was convened in public session, remotely by conference call or similar service pursuant to the New York State Executive Order 202.1, on March 30, 2020 at 5:15 p.m., local time. The meeting was called to order by the (Vice) Chairman and, upon roll being called, the following members of the Agency were: PRESENT: ABSENT: The following persons were also present: Sean Maguire Executive Director Christopher Kelsey Chief Financial Officer Melissa C. Bennett, Esq. Barclay Damon LLP The following resolution was offered by _______________, seconded by _______________, to wit: RESOLUTION APPROVING ADDITIONAL ANNUAL ACTIONS. WHEREAS, the Town of Colonie Industrial Development Agency (the “Agency”) is authorized and empowered by the provisions of Chapter 1030 of Laws of 1969 of New York, constituting Title 1 of Article 18-A of the General Municipal Law, Chapter 24 of the Consolidated Laws of New York, as amended (the “Enabling Act”) and Chapter 594 of the Laws of 1980 of New York, as amended, constituting Section 911-d of said General Municipal Law (said Chapter and the Enabling Act being hereinafter collectively referred to as the “Act”) to promote, develop, encourage and assist in the acquiring, constructing, renovating, improving, maintaining, equipping and furnishing of industrial, manufacturing, warehousing, commercial, research, and recreation facilities, among others, for the purpose of promoting, attracting and developing economically sound commerce and industry to advance the job opportunities, health, general prosperity and economic welfare of the people of the State of New York, to improve their prosperity and standard of living, and to prevent unemployment and economic deterioration; and -1- 20140438.3 WHEREAS, the Act and the Public Authorities Law require that the Agency prepare various annual reports (the “Annual Reports”); and WHEREAS, the Agency’s auditor has submitted draft audited financial statements for the year ended December 31, 2019 (the “Audited Financial Statements”) to the Agency; and WHEREAS, the Finance Committee has reviewed the Annual Reports and has recommended their approval by the Agency; and WHEREAS, the Governance Committee has reviewed the Annual Reports, and has recommended their approval by the Agency; and WHEREAS, the Audit/Finance Committee has reviewed the Audited Financial Statements and has recommended their acceptance by the Agency; and WHEREAS, the Finance Committee has reviewed the Annual Reports and has recommended their approval by the Agency; and WHEREAS, the Finance Committee has reviewed the Procurement Policy and proposed revisions to reflect Agency staffing changes, and recommended its approval by the Agency as revised; and WHEREAS, the Uniform Tax Exemption Policy, including proposed revisions to address changes in 2019 to the Act, was distributed to the “affected tax jurisdictions” for input; and WHEREAS, the members of the Agency desire to review and approve the Annual Reports and the Procurement Policy and accept the Audited Financial Statements, in the forms presented at this meeting; NOW, THEREFORE, BE IT RESOLVED BY THE MEMBERS OF THE TOWN OF COLONIE INDUSTRIAL DEVELOPMENT AGENCY AS FOLLOWS: Section 1. The Agency hereby: (a) approves the Annual Reports and the Procurement Policy; and (b) accepts the Audited Financial Statements, each in the form presented at this meeting. Section 2. The Agency, having reviewed and considered any input from the “affected tax jurisdictions” with respect to the proposed revisions to the Uniform Tax Exemption Policy, hereby approves the Uniform Tax Exemption Policy, in the form presented at this meeting. Section 3. The Executive Director of the Agency is hereby directed to: (a) post copies of the Annual Reports, the Audited Financial Statements, the Procurement Policy and the Uniform Tax Exemption Policy on the Agency’s website; and (b) file the Annual Reports and the Audited Financial Statements with the New York State Authorities Budget Office, as required by the Public Authorities Law. -2- 20140438.3 Section 4. This Resolution shall take effect immediately. The question of the adoption of the foregoing Resolution was duly put to a vote on roll call, which resulted as follows: AYE NAY ABSENT Carm Basile Alison Blessing Peter Gannon John Kearney Eric Phillips Gary Rinaldi Benjamin Syden The Resolution was thereupon declared adopted. -3- 20140438.3 STATE OF NEW YORK ) ) SS.: COUNTY OF ALBANY ) I, the undersigned Secretary of the Town of Colonie Industrial Development Agency (the “Agency”), do hereby certify that I have compared the foregoing extract of the minutes of the meeting of the members of the Agency, including the Resolution contained therein, held on March 30, 2020 with the original thereof on file in my office, and that the same is a true and correct copy of said original and of such Resolution set forth therein and of the whole of said original so far as the same relates to the subject matters therein referred to. I FURTHER CERTIFY that (A) all members of the Agency had due notice of said meeting; (B) said meeting was in all respects duly held; (C) pursuant to Article 7 of the Public Officers Law (the “Open Meetings Law”), said meeting was open to the general public, and due notice of the time and place of said meeting was duly given in accordance with such Open Meetings Law; and (D) there was a quorum of the members of the Agency present throughout said meeting. I FURTHER CERTIFY that, as of the date hereof, the attached Resolution is in full force and effect and has not been amended, repealed or rescinded. IN WITNESS WHEREOF, I have hereunto set my hand this 30th day of March, 2020. Secretary -4- 20140438.3 TOWN OF COLONIE INDUSTRIAL DEVELOPMENT AGENCY ASSESSMENT OF THE EFFECTIVENESS OF INTERNAL CONTROLS This statement certifies that management has documented and assessed the internal control structure and procedures of the Town of Colonie Industrial Development Agency (the “Agency”) for the year ending December 31, 2019. This assessment found the Agency’s internal controls to be adequate and the assessment did not identify any deficiencies. Below please find a summary of the Agency’s risk exposure and the internal controls used to manage it. RISK EXISTING BUSINESS FUNCTION EXPOSURE INTERNAL CONTROL ISSUES Comply with state laws, rules Low Bylaws and Policies None and regulations. Find and support projects that Low Project Approval Policy None honor the Agency’s purpose and mission. Monitor ongoing projects for Low Annual Assessment Policy None compliance. Monitor ongoing security risks. Low Annual Assessment Policy None Properly train Agency staff. Low Code of Ethics, Conflict of None Interest Policy, Whistleblower Policy Monitor budget and Agency Low Annual Audit, Audit None assets. Committee 20148016.2 Town of Colonie Industrial Development Agency Annual Investment Report FY2019 As required by Section 2925(6) of the Public Authorities Law of the State of New York, following is the annual investment report of the Town of Colonie Industrial Development Agency (the “Agency”). Attached hereto as Schedule 1 and made a part hereof is the Agency’s Investment Policy (the “Policy”) reviewed and approved by the Agency on March 30, 2020. The Policy has not been amended since the Agency last reviewed and adopted the Policy on March 18, 2019. The Policy is intended to comply with the requirements of General Municipal Law Sections 10 and 11 and with Public Authorities Law Article 9, Title 7, and to provide safeguards for the Agency’s investments and deposits. Attached hereto as Schedule 2 and made a part hereof are the results of the annual independent audit. The Agency generated $1,913.13 of interest income for the period January 1, 2019 through December 31, 2019. See Schedule 3 attached hereto and made a part hereof. The Agency paid no fees, commissions or other charges for investment associated services during the period January 1, 2019 through December 31, 2019. 20147996.2 Schedule 1 Investment Policy See attached 20147996.2 Schedule 2 Annual Independent Audit See attached 20147996.2 Schedule 3 Summary of Account Activity See attached 20147996.2 TOWN OF COLONIE INDUSTRIAL DEVELOPMENT AGENCY INVESTMENT AND DEPOSIT POLICY I. STATEMENT OF PURPOSE The Town of Colonie Industrial Development Agency (the “Agency”) has adopted this Investment and Deposit Policy (the “Policy”) in accordance with Article 9, Title 7 of the New York State Public Authorities Law (“PAL”) and the Public Authorities Reform Act of 2009 (“PARA”). This Policy shall detail the Agency’s instructions regarding the investment and deposit of its funds, all of which shall be consistent with and in compliance with the provisions of Chapter 1030 of Laws of 1969 of New York, constituting Title 1 of Article 18-A of the General Municipal Law, Chapter 24 of the Consolidated Laws of New York, as amended (the “Enabling Act”) and Chapter 232 of the Laws of 1977 of New York, as amended, constituting Section 911-d of said General Municipal Law (said Chapter and the Enabling Act being hereinafter collectively referred to as the “Act”), and any other applicable law regarding the investment and deposit of Agency funds. II. INTRODUCTION A. Scope This investment and deposit policy applies to all monies and other financial resources available for investment and deposit on its own behalf or on behalf of any other entity or individual. B. Objectives The primary objectives of the Agency’s investment activities are, in priority order: 1. to conform with all applicable federal, state and other legal requirements; 2. to adequately safeguard principal; 3. to provide sufficient liquidity to meet all operating requirements; and 4. to obtain a reasonable rate of return. C. Prudence All participants in the investment process and all participants responsible for depositing the Agency’s funds shall seek to act responsibly as custodians of the public trust and shall avoid any transaction that might impair confidence in the Agency to operate effectively. Investments and deposits shall be made with judgment and care, under circumstances then prevailing, which persons of prudence, discretion and intelligence exercise in the management of their own affairs, not for speculation, but for investment, considering the safety of the principal as well as the probable income to be derived. 1 5091458.3 All participants involved in the investment process and all participants responsible for depositing the Agency’s funds shall refrain from personal business activity that could conflict with proper execution of the investment program or the deposit of the Agency’s funds or which could impair their ability to make impartial investment decisions. D. Diversification It is the policy of the Agency to diversify its deposits and investments by financial institution, by investment instrument, and by maturity scheduling. E. Internal Controls 1. All money’s collected by the Agency shall be immediately deposited in such depositories as designated by the Agency for the receipt of such funds. 2. The Agency shall maintain or cause to be maintained a proper record of all book, notes, securities or other evidences of indebtedness held by the Agency for investment and deposit purposes. 3. The Agency is responsible for establishing and maintaining an internal control structure to provide reasonable, but not absolute, assurance that deposits and investments are safeguarded against loss from unauthorized use or disposition, that transactions are executed in accordance with the Board's authorization and recorded properly, and are managed in compliance with applicable laws and regulations. F. Designation of Depositories The Agency shall designate as depositories of its money those banks and trust companies authorized to serve as such pursuant to said law. Such currently designated banks and trust companies are set forth in Appendix A. III. INVESTMENT POLICY A. Permitted Investments (i) In accordance with Section 11 of the General Municipal Law, the Agency is authorized to invest moneys not required for immediate expenditure for terms not to exceed its projected cash flow needs in the following types of investments: 1. Special time deposit accounts; 2. Certificates of deposit; or 3. Deposit Placement Program as described in Section 10 of the General Municipal Law. A depository bank or trust company may arrange for the redeposit of the Agency’s funds into deposit accounts in one or more 2 5091458.3 eligible banking institutions provided that such Program satisfies all of the following requirements: (i) the depository bank or trust company serves as custodian for the Agency with respect to any funds that are redeposited; (ii) Agency funds held by the depository bank or trust company in excess of the amount insured by the Federal Deposit Insurance Corporation (the “FDIC”), pending redeposit, are secured in accordance with the General Municipal Law; (iii) the full amount of Agency funds redeposited by the depository bank or trust company into deposit accounts in other banking institutions as defined in section nine-r of the Banking Law (each an “Eligible Banking Institution”) (plus accrued interest, if any) are insured by the FDIC; and (iv) at the same time that the money of the Agency is redeposited, the depository bank or trust company receives deposits from customers of other Eligible Banking Institutions pursuant to the Deposit Placement Program in an amount that is at least equal to the amount of the Agency’s funds redeposited. provided, however, that the above types of investments are permitted investments provided that (1) they shall be payable within such time as the proceeds shall be needed to meet expenditures for which the moneys were obtained and (2) they are collateralized in the same manner as set forth in Section IV below for deposits of public funds. (ii) As authorized by Section 11 of General Municipal Law, the Agency may invest moneys not required for immediate expenditure for terms not to exceed its projected cash flow needs in the following additional types of investments: 1. Obligations of the United States of America; 2. Obligations guaranteed by agencies of the United States of America where the payment of principal and interest are guaranteed by the United States of America; and 3. Obligations of the State of New York. All such investment obligations shall be payable or redeemable at the option of the Agency within such times as the proceeds will be needed to meet expenditures for purposes for which the moneys were provided and, in the case of obligations purchased with the proceeds of bonds or notes, shall be payable or redeemable, at the option of the Agency, within two years of the date of purchase. Obligations that are purchased pursuant to a repurchase agreement shall be deemed to be payable or redeemable for purposes of this paragraph on the date on which the purchased obligations are scheduled to be repurchased by the seller thereof. Any obligation that provides 3 5091458.3 for the adjustment of its interest rate on set dates shall be deemed to be payable or redeemable for purposes of this paragraph on the date on which the principal amount can be recovered through demand by the holder thereof. Such obligations, unless registered or inscribed in the name of the Agency, shall be purchased through, delivered to and held in the custody of a bank or trust company. Such obligations shall be purchased, sold or presented for redemption or payment by such bank or trust company only in accordance with prior written authorization from the officer authorized to make the investment. All such transactions shall be confirmed in writing to the Agency by the bank or trust company. All obligations held in the custody of a bank or trust company pursuant to this paragraph shall be held by such bank or trust company pursuant to a written custodial agreement as described in Section IV(B) below. B. Authorized Financial Institutions The Agency shall not engage in any activity with any investment banker, broker, agent, dealer, investment advisor or agent unless and until the Agency has determined that such party is qualified to do so. In determining a party’s qualifications, the Agency shall consider the quality and reliability of that party’s services, that party’s experience in providing such services, and the size and level of capitalization maintained by that party. The Agency shall maintain a list of financial institutions approved for investment purposes and establish appropriate limits to the amount of investments which can be made with each financial institution. Such listing shall be evaluated at least annually. All financial institutions with which the Agency conducts business must be credit worthy. Banks shall provide their most recent Consolidated Report of Condition (Call Report) at the request of the Agency. Such currently approved financial institutions are set forth in Appendix B. C. Investment Contracts All investments must be made pursuant to a written contract between the Agency and the investment bank, broker, agent, dealer or advisor. If use of a written contract is not practical or not a regular business practice of the investment bank, broker, agent, dealer or advisor, the Agency may proceed with such party only if: 1. the Agency determines, by resolution, that the regular business practice does not encompass the use of a written contract; and 2. the Agency adopts procedures covering the investment transaction. Any procedure so adopted must comply substantially with the provisions which would be required if the transaction were covered by a written contract as described in subsection (D) below. Those procedures shall thereafter become a part of this Policy. D. Content of Investment Contracts All investment contracts, written or otherwise, shall contain: 4 5091458.3 1. Provisions sufficient to secure the Agency’s financial interest in each investment; 2. Provisions outlining the type and amount of collateral and insurance necessary to adequately secure the investment, as well as the uses, if any, of such collateral or insurance; 3. Provisions which establish a method for valuing the collateral, and procedures for monitoring the valuation of such collateral on a regular basis; 4. Provisions for the monitoring, control, deposit and retention of investments and collateral. In the case of a repurchase agreement, these provisions shall include a requirement that the obligations purchased be physically delivered for retention to the Agency or its agent (which shall not be an agent of the party with whom the Agency enters into such repurchase agreement), unless such obligations are issued in book-entry form, in which case the Agency shall take such other action as may be necessary to obtain title to or a perfected security interest in such obligations. All contracts shall comply with the provisions of this Policy. IV. DEPOSIT POLICY A. Collateralization of Deposits In accordance with the provisions of Section 10 of the General Municipal Law, all deposits of the Agency, including certificates of deposit and special time deposits, in excess of the amount insured under the provisions of the Federal Deposit Insurance Act shall be secured: 1. By pledge of “eligible securities” with an aggregate “market value”, as provided by Section 10 of the General Municipal Law, equal to the aggregate amount of deposits. A schedule of “eligible securities” is set forth in Appendix C attached hereto. 2. By an eligible irrevocable letter of credit issued by a qualified bank (other than the bank with which the money is being deposited) in favor of the Agency for a term not to exceed 90 days with an aggregate value equal to 140% of the aggregate amount of deposits and the agreed upon interest, if any. A qualified bank is a bank (1) whose commercial paper and other unsecured short-term debt obligations are rated in one of the three highest rating categories by at least one nationally recognized statistical rating organization or (2) that is in compliance with applicable federal minimum risk-based capital requirements. 3. By an eligible surety bond payable to the Agency for an amount at least equal to 100% of the aggregate amount of deposits and the agreed upon interest, if any, executed by an insurance company authorized to do business in New York State, whose claims-paying ability is rated in the highest rating category by at least two nationally recognized statistical 5 5091458.3 rating organizations. The terms and conditions of any eligible surety bond must be approved by the members of the Agency. B. Safekeeping and Collateralization Eligible securities used for collateralizing deposits shall be held by the depository bank or trust company subject to security and custodial agreements. The security agreement shall provide that eligible securities are being pledged to secure the Agency’s deposits, together with agreed upon interest, if any, and any costs or expenses arising out of the collection of such deposits upon default. It shall also provide the conditions under which the securities may be sold, presented for payment, substituted or released and the events of default which will enable the Agency to exercise its rights against the pledged securities. In the event that the securities are not registered or inscribed in the name of the Agency, such securities shall be delivered in a form suitable for transfer or with an assignment in blank to the Agency or its custodial bank. Such agreement shall also include all other provisions deemed necessary and sufficient to secure in a satisfactory manner the Agency’s interest in the collateral. The custodial agreement shall provide that securities will be held by the custodial bank or trust company as agent of, and custodian for, the Agency, will be kept separate and apart from the general assets of the custodial bank or trust company and will not, under any circumstances, be commingled with or become part of backing for any other deposit or other liabilities. The agreement shall also describe how the custodian shall confirm the receipt, substitution or release of the securities. The agreement shall provide for the frequency of revaluation of the securities and for the substitution of securities when a change in the rating of a security causes ineligibility. Such agreement shall also include all other provisions deemed necessary and sufficient to secure in a satisfactory manner the Agency’s interest in the collateral. VI. ANNUAL AUDIT An independent certified public accountant shall audit all investments held by the Agency on an annual basis. The report prepared pursuant to the annual audit shall be available to the Agency and shall be used in reviewing and approving this Policy. VII. REPORTING REQUIREMENTS A. Quarterly Reports At the end of each quarter, the Agency members shall be provided with a report on all investment activity during that quarter. This report shall contain: 1. A list of any new investments and deposits; 2. An inventory of all existing investments and deposits; and 3. A description of the selection of investment bankers, brokers, agents, dealers, or auditors. 6 5091458.3 Any additions or deletions must be specifically indicated, with an explanation for the addition or deletion. B. Annual Investment Report An annual investment report shall be prepared and transmitted to the appropriate oversight agencies. The report shall include: 1. this policy, including any changes made since the last submission; 2. an explanation of this policy and any amendments; 3. the results of the annual independent audit; 4. the investment income record of the Agency; and 5. a list of all total fees, commission and other charges paid to each investment banker, broker, agent, dealer, advisor, bank and trust company, since the last submission. The report shall be submitted to 1. The State Department of Audit and Control; and 2. The Chief Executive Officer and Chief Fiscal Officer of the Town of Colonie. Copies of the report shall be made available to the public, upon reasonable request. Adopted: February 1, 2016 7 5091458.3 APPENDIX A AUTHORIZED BANKS AND TRUST COMPANIES The following banks and trust companies are authorized for the deposit of Agency funds up to the following maximum amounts: JP Morgan Chase $5,000,000.00 Citizens Bank $5,000,000.00 Bank of America $5,000,000.00 Key Bank $5,000,000.00 M&T Bank $5,000,000.00 Capital Bank and Trust $5,000,000.00 TD Banknorth $5,000,000.00 First Niagara $5,000,000.00 NBT Bank $5,000,000.00 A-1 5091458.3 APPENDIX B AUTHORIZED FINANCIAL INSTITUTIONS FOR INVESTMENT The following financial institutions are approved for investment purposes up to the following maximum amounts: None at this time. B-1 5091458.3 APPENDIX C SCHEDULE OF ELIGIBLE SECURITIES (1) Obligations issued, or fully insured or guaranteed as to the payment of principal and interest, by the United States of America, an agency thereof or a United States government sponsored corporation. (2) Obligations issued or fully guaranteed by the International Bank for Reconstruction and Development, the Inter-American Development Bank, the Asian Development Bank and the African Development Bank. (3) Obligations partially insured or guaranteed by any agency of the United States of America, at a proportion of the market value of the obligation that represents the amount of the insurance or guaranty. (4) Obligations issued or fully insured or guaranteed by the State of New York, obligations issued by a municipal corporation, school district or district corporation of such State or obligations of any public benefit corporation which under a specific State statute may be accepted as security for deposit of public moneys. (5) Obligations issued by states (other than the State of New York) of the United States rated in one of the three highest rating categories by at least one nationally recognized statistical rating organization. (6) Obligations of Puerto Rico rated in one of the three highest rating categories by at least one nationally recognized statistical rating organization. (7) Obligations of counties, cities and other governmental entities of a state other than the State of New York having the power to levy taxes that are backed by the full faith and credit of such governmental entity and rated in one of the three highest categories by at least one nationally recognized statistical rating organization. (8) Obligations of domestic corporations rated in one of the two highest rating categories by at least one nationally recognized statistical rating organization. (9) Any mortgage related securities, as defined in the Securities Exchange Act of 1934, as amended, which may be purchased by banks under the limitations established by bank regulatory agencies. (10) Commercial paper and bankers’ acceptances issued by a bank (other than the bank with which the money is being deposited or invested), rated in the highest short term category by at least one nationally recognized statistical rating organization and having maturities of not longer than 60 days from the date they are pledged. (11) Zero-coupon obligations of the United States government marketed as “Treasury STRIPS”. C-1 5091458.3 TOWN OF COLONIE INDUSTRIAL DEVELOPMENT AGENCY MISSION STATEMENT AND PERFORMANCE MEASUREMENTS REPORT 2019 MISSION STATEMENT The Town of Colonie Industrial Development Agency (the “Agency”) is a public benefit corporation created to promote, develop, encourage and assist in the construction, expansion, and equipping of economically sound industrial and commercial facilities in order to advance the job opportunities, general prosperity, and economic welfare of the citizens of the Town of Colonie. The Agency’s primary role is to provide financial assistance and incentives to the business community in order to maximize private capital investment in the economy of the Town of Colonie and to develop opportunities for job creations and job retention within the Town of Colonie through the use of its own assets, public funds and private investment. The Agency’s performance and achievement of the Agency’s goals shall be measured by the following: 1. Number and quality of new business and employment opportunities created; 2. Number and quality of current commercial enterprises retained and expanded; 3. Number of job opportunities created and level of pay associated with such job creation; 4. Number of job opportunities retained and level of pay associated with such job retention; 5. Amount of financial assistance provided in order to achieve the preceding four measurements; and 6. Other activities of the Agency which further its mission. Date adopted: Re-adopted on March 30, 2020 PERFORMANCE MEASUREMENTS During 2019, the Agency furthered the performance and achievement of the Agency’s goals as outlined in its mission statement in the following ways: 1. Number and quality of new business and employment opportunities created. 2. Number and quality of current commercial enterprises retained and expanded. 3. Number of job opportunities created and level of pay associated with such job creation. 4. Number of job opportunities retained and level of pay associated with such job retention. The Agency closed on a straight-lease transaction for The Ayco Company, L.P. (“Ayco”) in April 2019. The project was undertaken in conjunction with the Starlite Associates, LLC project that closed in 2018 and will result in the creation of an approximately 150,000 square foot new office building constructed on the former Starlite Theatre site that was vacant for nearly 20 years. The building will serve as Ayco’s new corporate headquarters. Ayco had considered various sites outside of the Town of Colonie for its corporate headquarters. The Starlite project closed and financial assistance was granted 1 20143307.3 in September 2018 its construction for the office building is complete. Starlite’s investment is approximately $35,000,000 and Ayco’s investment is approximately $23,600,000. The projects will retain 626 jobs in the Town of Colonie and create an additional 160 jobs in the Town of Colonie within two years of the project’s completion. All jobs will be retained and created by Ayco, a financial management services firm headquartered in Saratoga Springs with locations around the country. Of the 786 jobs being retained/created, 565 will be professional/ managerial/technical jobs with an estimated average level of pay of $109,000 and estimated average benefits of $18,800, 218 will be skilled jobs with an estimated average level of pay of $50,900 and estimated average benefits of $13,700, and 3 will be unskilled or semi-skilled jobs with an estimated average level of pay of $42,200 and estimated average benefits of $13,000. The Agency adopted a public hearing resolution in December 2019 for a project for Trixie Girl, LLC / Chris’ Coffee Service, Inc. 5. Amount of financial assistance provided in order to achieve the preceding four measurements. For The Ayco Company, L.P. project, the Agency provided sales and use tax exemptions in an amount not to exceed $1,380,000. 6. Other activities of the Agency which further its mission. The Agency continued to evaluate possible development options for the vacant land it owns at 272 Maxwell Road. The Agency has been in discussions with the Town of Colonie’s Public Library regarding the Library’s potential use of the property. The Agency continued to work with Barton & Loguidice, D.P.C. to implement the Brownfield Opportunity Areas Program grant administered by the New York State Secretary of State, which the Agency received in order to assist the Agency in comprehensively measuring existing economic and environmental conditions in the Lincoln Avenue area and in identifying redevelopment opportunities. The Agency responded to a number of inquiries regarding potential projects for financial assistance and determined that a number of the potential projects were not eligible for financial assistance under the General Municipal Law and/or would not further the Agency’s mission. The Agency also maintained relationships with current projects and continued to evaluate other ways by which the Agency could foster economic development in the Town. 2 20143307.3 ADDITIONAL QUESTIONS 1. Have the board members acknowledged that they have read and understood the mission of the public authority? Yes. The members of the Agency reviewed and re-adopted the mission statement on March 30, 2020. 2. Who has the power to appoint the management of the public authority? The Agency appoints the Chief Executive Officer and the Chief Financial Officer of the Agency. The Chief Executive Officer and the Chief Financial Officer are employees of the Town of Colonie and provide services to the Agency pursuant to a contract between the Agency and the Town. 3. If the Board appoints management, do you have a policy you follow when appointing the management of the public authority? No. 4. Briefly describe the role of the Board and the role of management in the implementation of the mission. The mission statement of the Agency was developed by the members. The members of the Agency act as an independent body of members who exercise their fiduciary responsibilities with great care. The members make policy decisions and determine which projects receive “financial assistance”, within the meaning of the General Municipal Law. Management assists the Board members in the exercise of their fiduciary duties by providing administrative, financial and economic development services. 5. Has the Board acknowledged that they have read and understood the responses to each of these questions? Yes. 3 20143307.3 Town of Colonie Industrial Development Agency Uniform Tax Exemption Policy Pursuant to the authority vested in it by Article 18-A of the General Municipal Law of the State of New York (the “Act”), the Town of Colonie Industrial Development Agency (the “Agency”) may provide “financial assistance” to qualified applicants for qualified “project” or “facilities” as defined by the Act in the form of issuance of its tax-exempt or taxable bonds or by granting exemptions from sales and use taxes, mortgage recording taxes and real property taxes. The Agency has adopted this Uniform Tax Exemption Policy (the “Policy”) to provide guidelines for the granting of “financial assistance”. A. Application No request for financial assistance shall be considered by the Agency unless an application and environmental assessment form are filed with the Agency on the forms prescribed by the Agency pursuant to the rules and regulations of the Agency. Such application shall contain the information requested by the Agency, including a description of the proposed project and of each tax exemption sought with respect to the project, the estimated value of each tax exemption sought with respect to the project, the proposed financial assistance being sought with respect to the project, and whether such financial assistance is consistent with this Policy. All recipients of financial assistance from the Agency shall be required to pay the Agency’s fee, as may be determined from time to time by resolution of the Agency, and the fees and expenses of counsel to the Agency. B. Real Property Taxes 1. General. Pursuant to Section 874 of the Act and Section 412-a of the Real Property Tax Law, property owned by or under the jurisdiction or supervision or control of the Agency is exempt from general real property taxes (but not exempt from special assessments and special ad valorem levies). However, it is the general policy of the Agency that, notwithstanding the foregoing, every non- governmental project will be required to enter into a payment in lieu of tax agreement (a “PILOT Agreement”). Such PILOT Agreement shall require payment of payments in lieu of taxes (“PILOT Payments”) in accordance with the provisions set forth below. 2. PILOT Requirement. Unless the applicant and/or project occupant and the Agency shall have entered into a PILOT Agreement acceptable to the Agency, the project documents shall provide that the applicant and/or the project occupant shall be required to make PILOT Payments in such amounts as would result from taxes being levied on the project by the taxing jurisdictions if the project were not owned by or under the jurisdiction or supervision or control of the Agency. The project documents shall provide that, if the Agency and the applicant and/or project occupant have entered into a PILOT Agreement, the terms of the PILOT Agreement shall control the amount of PILOT Payments until the expiration or sooner termination of such agreement. 294339.6 3. Qualifying Projects for the “Grow Colonie Program”. The following projects shall qualify for real property tax exemptions under the Grow Colonie Program as set forth in Appendix A: (a) Types of Qualifying Projects. Technology projects (either office or research and development), manufacturing projects and flex space projects. Other than in accordance with the deviation process set forth below, real property tax exemptions are not available for other types of projects. (b) Job Creation Requirement. Any project requesting a real property tax exemption must meet a minimum 10% job creation goal over impacted employment within three (3) years. In the event of a new business, the project must create a minimum of ten (10) new jobs within three (3) years of commencement of operation. 4. Qualifying Projects for the “Enhanced Grow Colonie Program”. The following projects shall qualify for real property tax exemptions under the Enhanced Grow Colonie program as set forth in Appendix A: (a) Basic Requirements. Any project requesting a real property tax exemption must comply with all of the requirements of the Grow Colonie Program. (b) Additional Requirement. Any project requesting a real property tax exemption must be: (i) Located in the Route 5 Corridor, beginning at the City of Albany line and ending at the City of Schenectady line, as indicated on the map attached here to as Appendix B; or (ii) Located on a not less than one acre parcel that has been underutilized for a period of not less than ten (10) years; or (iii) Be a “brownfield project” located in a Brownfield Opportunity Area; or (iv) Be a “prevailing wage project”. A prevailing wage project is one where the contractor and subcontractors constructing or reconstructing the project facility pays its workers the prevailing rate of wages within the meaning of Section 220 of the New York State Labor Law. Although redevelopment of existing buildings that are not currently in use do not automatically qualify for the Enhanced Grow Colonie Program, such projects may be eligible for benefits similar to those provided in the Enhanced Grow Colonie Program as part of the deviation process. 294339.6 5. PILOT Agreement. Unless otherwise determined by resolution of the Agency, all PILOT Agreements shall satisfy the following general conditions: (a) Amount of Abatement. The general policy of the Agency is to provide the applicant and/or project occupant with the abatement described in Appendix A attached hereto and made a part hereof. (b) Special District Taxes. As indicated above, the Agency is not exempt from special assessments and special ad valorem levies, and accordingly these amounts are not subject to abatement by reason of the Agency’s leasehold interest in the project. The PILOT Agreement shall make this clear and shall require that all such amounts be directly paid by the applicant and/or project occupant. (c) Payee. Unless otherwise determined by resolution of the Agency, all PILOT Payments payable to an affected tax jurisdiction shall be assessed, billed and collected directly by the same officials which assess, bill and collect normal taxes levied by such affected tax jurisdiction. Pursuant to Section 874(3) of the Act, such PILOT Payments shall be remitted to each affected tax jurisdiction within thirty (30) days of receipt of the bill therefor. (d) Enforcement. An affected tax jurisdiction which has not received a PILOT Payment due to it under a PILOT Agreement may exercise its remedies under Section 874(6) of the Act. In addition, such affected tax jurisdiction may petition the Agency to exercise whatever remedies the Agency may have under the project documents to enforce payment and, if such affected tax jurisdiction indemnifies the Agency and agrees to pay the Agency’s costs incurred in connection therewith, the Agency may take action to enforce the PILOT Agreement. (e) Security for PILOT Payments. Except as otherwise provided by resolution of the Agency, each applicant entering into a PILOT Agreement with the Agency must grant to the Agency a first mortgage lien on the subject property to secure its obligation to make PILOT Payments. 6. Form 412-a. Pursuant to Section 874 of the Act and Section 412-a of the Real Property Tax Law, no real property tax exemption with respect to a particular project shall be effective until an exemption form is filed with the assessor of each county, city, town, village and school district in which such project is located (each, a “Taxing Jurisdiction”). Once an exemption form with respect to a particular project is filed with a particular Taxing Jurisdiction, the real property tax exemption for such project does not take effect until (1) a tax status date for such Taxing Jurisdiction occurring subsequent to such filing, (2) an assessment roll for such Taxing Jurisdiction is finalized subsequent to such tax status date, (3) such assessment roll becomes the basis for the preparation of a tax roll for such 294339.6 Taxing Jurisdiction, and (4) the tax year to which such tax roll relates commences. 7. Real Property Appraisals. Since the policy of the Agency is to base the value of a project for payment in lieu of tax purposes on a valuation of such project performed by the assessor of the applicable Taxing Jurisdiction, normally a separate real property appraisal is not required. However, the Agency may require the submission of a real property appraisal if (1) the assessor of any particular Taxing Jurisdiction requires one or (2) if the valuation of the project for payment in lieu of tax purposes, is based on a value determined by the applicant or by someone acting on behalf of the applicant, rather than by an assessor for a Taxing Jurisdiction or by the Agency. If the Agency requires the submission of a real property appraisal, such appraisal shall be prepared by an independent MAI certified appraiser acceptable to the Agency. C. Mortgage Recording Tax Exemptions The Agency’s policy is to permit mortgage recording tax exemptions on the initial financing of a project, to the full extent permitted by New York State Law. In instances where the initial financing commitment provides for a construction financing to be replaced by a permanent financing immediately upon the completion of the project, the Agency’s general policy is to grant the mortgage recording tax exemption on both the construction financing and the permanent financing. It is the policy of the Agency not to grant a mortgage recording tax exemption with respect to any additional re-financing of a project. D. Sales and Use Tax Exemptions 1. The Agency’s policy is to permit project applicants, as agent of the Agency, to claim exemption from sales and use taxes to the full extent permitted by New York State Law for the period beginning on the closing date of the straight lease transaction or the date of issuance of Agency bonds (the “Closing Date”) and ending on the date of completion of construction of the project. The tax exemption period may, at the discretion of the Agency, commence earlier than the Closing Date, provided that (a) the Agency has complied with the requirements of Section 859-a of the Act, (b) the Agency thereafter adopts a resolution determining to commence such period earlier, (c) the applicant agrees to the conditions of such resolution and supplies to the Agency the materials required to be supplied to the Agency thereunder, and (d) the Chairman (or Vice Chairman) of the Agency acknowledges satisfaction of all conditions to the granting of such tax exemption set forth in such resolution. 2. All project applicants must agree in writing to timely file with the New York State Department of Taxation an annual statement of the value of all sales and use tax exemptions, and other exemptions claimed in connection with the Facility in full compliance with Section 874(8) of the Act, in the form and at the times required thereby. 294339.6 E. Deviations In addition to or in lieu of the foregoing the Agency may determine, on case-by-case basis and in accordance with the provisions of the Act, to deviate from the guidelines described above or provide enhanced benefits for a project expected to have significant impact in the Town. The Agency shall consider the following factors in making such determination, no single one of which shall be determinative: - The nature of the proposed project (e.g., manufacturing, commercial, warehouse). - The nature of the property before the project begins (e.g., vacant land, vacant buildings). - The economic condition of the area at the time of the application. - The extent to which a project will create or retain permanent, private sector jobs. - The estimated value of tax exemptions to be provided. - The extent to which the proposed project will provide additional sources of revenue for municipalities and school districts in which the project is located. - The impact of the project and the proposed tax exemptions on affected tax jurisdictions. - The impact of the proposed project on existing and proposed businesses and economic development projects in the vicinity. - The amount of private sector investment generated or likely to be generated by the proposed project. - The likelihood of accomplishing the proposed projects in a timely fashion. - The effect of the proposed project upon the environment. - The extent to which the proposed project will require the provision of additional services including, but not limited to, additional educational, transportation, police, emergency medical or fire services. - The extent to which the proposed project will follow local input from local planning agencies. - The extent to which the proposed project will provide a benefit (economic or otherwise) not otherwise available within the Town. - The extent to which the project owner or occupant will enter into apprenticeship agreements within the meaning of Section 816 of the Labor Law of the State of 294339.6 New York with respect to the construction, reconstruction or operation of the project. - The demonstrated public support for the proposed project. - The extent to which the project will utilize, to the fullest extent practicable and economically feasible, resource conservation, energy efficiency, green technologies, and alternative and renewable energy measures. F. Repayment Provisions Project documents for projects receiving real property tax exemptions pursuant to this Policy shall contain benefit recapture provisions including but not limited to the following: If the minimum number of new jobs is not created by the end of the three (3) year period or is not continuously maintained during the balance of term of the PILOT Agreement, the exemption schedule for the following year will revert automatically to the schedule provided in Section 485-b of the New York Real Property Tax Law (the “485-b Schedule”). In addition, repayment will be required in any year for which job creation requirements are not met (the “Disqualifying Year”), as an additional payment in lieu of taxes. The repayment amount is equal to the difference between benefits received in years one through the Disqualifying Year and the tax benefits which would have been received in years one through the Disqualifying Year under Section 485-b of the New York Real Property Tax Law. Under extenuating circumstances, the Agency may waive the above penalties after reviewing a written request for waiver of penalties. 294339.6 APPENDIX A GROW COLONIE PROGRAM The percentage of exemption for projects that qualify for the Grow Colonie Program shall be as follow: TAX YEAR PERCENTAGE OF NORMAL TAX EXEMPTION* Year 1 75% Year 2 65% Year 3 55% Year 4 45% Year 5 35% Year 6 25% Year 7 15% Year 8 0 * 100% of Normal Taxes are payable with respect to the assessed value of land and existing improvements. ENHANCED GROW COLONIE PROGRAM The percentage of exemption for projects that qualify for the Enhanced Grow Colonie Program shall be as follow: TAX YEAR PERCENTAGE OF NORMAL TAX EXEMPTION* Year 1 90% Year 2 80 Year 3 70 Year 4 60 Year 5 45 Year 6 30 Year 7 15 Year 8 0 * 100% of Normal Taxes are payable with respect to the assessed value of land and existing improvements. 294339.6 APPENDIX B Map of Route 5 Corridor 294339.6 ST-62 Department of Taxation and Finance IDA Annual Compliance Report (1/18) State Sales Tax Recapture For IDA fiscal year ending 12 31 19 (mmddyy) Due within 90 days of the end of each fiscal year. IDA information Name of IDA Town of Colonie Industrial Development Agency Street address Telephone number 347 Old Niskayuna Road 518 783-2741 (   ) City State ZIP code Latham NY 12110 Terms and conditions for the recapture of state sales tax exemption benefits for projects established, amended, or extended on or after March 28, 2013 1 Did the IDA provide state sales tax exemption benefits to any project established, amended, or extended during the fiscal year entered above?....................................................................................... 1 Yes No   If Yes, continue below.   If No, skip to question 3. 2 When an IDA establishes a project, appoints an agent/project operator, or amends or extends a project established in a prior year, the IDA must include terms and conditions for the recapture of state sales .tax exemption benefits in its resolutions and project documents. This applies to all projects established, .amended, or extended on or after March 28, 2013 (see instructions). Did the IDA use the same terms and conditions regarding the recapture of state sales tax exemption benefits in the project documents for each of its projects (as described above)?................... 2 Yes No If Yes, attach a copy of the terms and conditions used. If No, attach a copy of each version used. Be sure to identify the projects to which each version of the terms and conditions relate. If the IDA did not include terms and conditions for the recapture of state sales tax exemption benefits in the project documents, attach a list of these projects (see instructions). Activities and efforts to recapture state sales tax exemption benefits for projects established, amended, or extended on or after March 28, 2013 3 Did the IDA make efforts to recapture any state sales and use tax exemption benefits from an agent, project operator, or other person or entity (see instructions)? ...................................................... 3 Yes No If Yes, continue below. If No, skip question 4 and complete the Certification below. 4 Did the IDA file Form ST-65, IDA Report of Recaptured Sales and Use Tax Benefits, for each recapture, and remit the funds to the Tax Department?.......................................................................... 4 Yes No If Yes, you must keep a copy of Form ST-65 and supporting documentation related to the recapture activities. If No, attach an explanation of the IDA’s recapture efforts (see instructions). Certification I certify that the above statements are true, complete, and correct, and that no material information has been omitted. I make these statements with the knowledge that willfully providing false or fraudulent information with this document may constitute a felony or other crime under New York State Law, punishable by a substantial fine and possible jail sentence. I also understand that the Tax Department is authorized to investigate the validity of any information entered on this document. Print name of person signing on behalf of the IDA Print title of person signing on behalf of the IDA Sean Maguire Executive Director Signature Date Telephone number (   ) 518 783-2741 Mailing instructions Mail completed form and attachments to: NYS TAX DEPARTMENT IDA UNIT W A HARRIMAN CAMPUS ALBANY NY 12227-0866 If not using U.S. Mail, see Publication 55, Designated Private Delivery Services. Page 2 of 2 ST-62 (1/18) Instructions Filing requirements Activities and efforts to recapture state sales tax Every IDA must file this compliance report every year. The exemption benefits report must include: The GML requires that each IDA recapture state sales • the terms and conditions for the recapture of state tax exemption benefits that were claimed by a project sales tax exemption benefits (as described in General operator or agent, or other person or entity, whenever the Municipal Law (GML) section 875(3)) within all of the benefits were: IDA’s resolutions and project documents. This applies • not entitled or authorized to be taken, to: • in excess of the amounts authorized, – projects established and agents or project operators • for unauthorized property or services, or appointed, and any financial assistance or agreement for payments in lieu of taxes provided, on or after • for property or services not used according to the terms March 28, 2013; and of the agreement with the IDA. – any amendment or revision for additional funds or See Form ST-65, IDA Report of Recaptured Sales and benefits made on or after March 28, 2013, to projects Use Tax Benefits, for more information. established, agents or project operators appointed, financial assistance provided, or payments in lieu of IDAs must remit recaptured state sales tax benefit taxes provided, prior to March 28, 2013. amounts to the Tax Department within 30 calendar days, using Form ST-65. • information about efforts the IDA has made to recover, recapture, receive, or obtain any state sales tax Line 4: If the IDA made efforts to recapture sales tax exemption benefits and payments in lieu of state sales exemption benefits during the fiscal year covered by taxes from an agent/project operator, or other person or this report and has not filed Form ST-65, attach an entity. explanation. Every IDA must file Form ST-62 within 90 days of the end The attachment must include: of each fiscal year. • name and address of the project and project number; The term state sales tax as used in this form includes both • legal name, EIN, and address of the agent/project state sales tax and the state use tax. operator, or other person or entity; For more information, see TSB-M-14(1.1)S, Sales Tax • project beginning and end dates; Reporting and Recordkeeping Requirements for Industrial • the basis for recapture, as described above; Development Agencies and Authorities. • date of recapture efforts; Any IDA that fails to file or substantially complete this • amounts identified as required to be recaptured; and report may lose its authority to provide state sales tax • amount recaptured, if different. exemption benefits. When identifying recapture amounts, be sure to break Terms and conditions for the recapture of state down the total dollar amount into the categories below: sales tax exemption benefits • state tax, Line 2 – If the IDA: • local tax, • used the same standard terms and conditions for the • MCTD tax (if applicable), recapture of state sales tax exemption benefits in the • penalties, and project documents for all projects covered by this report, • interest. attach a copy of the terms and conditions used. You are not required to attach the entire document. Attach only If the amount recaptured was not paid in full, also include the sections describing the state sales tax recapture copies of correspondence exchanged between the IDA requirements described in GML section 875(3). and the agent/project operator, or other entity or person • used different terms and conditions for the recapture regarding the recapture efforts. of state sales tax exemption benefits in the project documents for the projects covered by this report, Need help? attach a copy of the terms and conditions used and Visit our website at www.tax.ny.gov. identify the project(s) to which they relate. Be sure to include the project name and address, and the legal name and EIN of the agent or project operator for each project identified. • provided state sales tax exemption benefits but did not include terms and conditions for the recapture of those benefits, attach a list of these projects. Include the project name and address, the legal name and EIN of the agent or project operator, and the reason why terms and conditions regarding recapture were not included. Suspension, Discontinuation, Recapture and/or Termination of Financial Assistance. It is understood and agreed by the Parties hereto that the Agency is entering into the Underlying Lease, the Lease Agreement, [the PILOT Agreement,] and this Project Agreement in order to provide Financial Assistance to the Company for the Project Facility and to accomplish the public purposes of the Act. (a) In accordance with Section 875(3) of the New York General Municipal Law, the policies of the Agency, and the Resolution, the Company covenants and agrees that it is subject to recapture of all State sales and use tax exemption benefits if: (1) the Company or its Subagents, if any, authorized to make purchases for the benefit of the Project is not entitled to the State sales and use tax exemption benefits; or (2) the State sales and use tax exemption benefits are in excess of the amounts authorized by the Agency to be taken by the Company or its Subagents, if any; or (3) the State sales and use tax exemption benefits are for property or services not authorized by the Agency as part of the Project; or (4) the Project has failed to comply with a material term or condition to use the property or services in the manner required by any project document between the Company and the Agency. Each of the foregoing four events are hereinafter referred to as a “State-Mandated Recapture Event”. The Agency shall evaluate, annually as of December 31, or at any time information is brought to the Agency’s attention, whether a State-Mandated Recapture Event has occurred. (c) If a State-Mandated Recapture Event occurs or the Agency makes a Determination, the Company agrees and covenants that it will: (i) cooperate with the Agency in its efforts to recover or recapture any or all Financial Assistance obtained by the Company; and (ii) promptly pay over any or all such amounts to the Agency that the Agency demands in connection therewith. Upon receipt of such amounts, the Agency shall then redistribute such amounts to the appropriate affected tax jurisdictions, unless agreed to otherwise by any local taxing jurisdiction. The Company further understands and agrees that in the event that the Company fails to pay over such amounts to the Agency, the New York State Tax Commissioner may assess and determine the State sales and use tax due from the Company, together with any relevant penalties and interest due on such amounts. 20212578.1