Bill Text: NY S03364 | 2017-2018 | General Assembly | Amended


Bill Title: Enacts the corporate accountability for tax expenditures act; standardizes applications for state development assistance for empire zone assistance and industrial development agency assistance; requires submission of certain development assistance agreements to the department of taxation and finance; requires recipients of certain development assistance to submit progress reports which include certain information and disclosures; makes certain recapture provisions; and defines relevant terms.

Spectrum: Partisan Bill (Democrat 3-0)

Status: (Introduced - Dead) 2018-06-18 - PRINT NUMBER 3364A [S03364 Detail]

Download: New_York-2017-S03364-Amended.html


                STATE OF NEW YORK
        ________________________________________________________________________
                                         3364--A
                               2017-2018 Regular Sessions
                    IN SENATE
                                    January 23, 2017
                                       ___________
        Introduced  by  Sens.  KRUEGER, BAILEY, PARKER -- read twice and ordered
          printed, and when printed to be committed to the Committee  on  Corpo-
          rations,  Authorities  and Commissions -- recommitted to the Committee
          on Corporations, Authorities and Commissions in accordance with Senate
          Rule  6,  sec.  8  --  committee  discharged,  bill  amended,  ordered
          reprinted as amended and recommitted to said committee
        AN  ACT to amend the business corporation law and the public authorities
          law, in relation to enacting the  "corporate  accountability  for  tax
          expenditures act"
          The  People of the State of New York, represented in Senate and Assem-
        bly, do enact as follows:
     1    Section 1. Short title.  This act shall be known and may be  cited  as
     2  the "corporate accountability for tax expenditures act".
     3    §  2.  The business corporation law is amended by adding a new article
     4  14 to read as follows:
     5                                  ARTICLE 14
     6                CORPORATE ACCOUNTABILITY FOR TAX EXPENDITURES
     7  Section 1401. Definitions.
     8          1402. Unified economic development budget.
     9          1403. Standardized applications for  state  development  assist-
    10                  ance.
    11          1404. State development assistance disclosure.
    12          1405. Recapture.
    13  § 1401. Definitions.
    14    As used in this article:
    15    (a) "Base years" means the first two complete calendar years following
    16  the effective date of a recipient receiving development assistance.
    17    (b) "Date of assistance" means the commencement date of the assistance
    18  agreement,  which date triggers the period during which the recipient is
    19  obligated to create or  retain  jobs  and  continue  operations  at  the
    20  specific project site.
         EXPLANATION--Matter in italics (underscored) is new; matter in brackets
                              [ ] is old law to be omitted.
                                                                   LBD05985-02-8

        S. 3364--A                          2
     1    (c)  "Default"  means  that  a  recipient  has  not  achieved  its job
     2  creation, job retention, or wage or benefit goals, as applicable, during
     3  the prescribed period therefor.
     4    (d)  "Department"  means,  unless  otherwise  noted, the department of
     5  taxation and finance or any successor agency.
     6    (e) "Development assistance" means (1) tax credits and tax  exemptions
     7  (other  than  given under tax increment financing) given as an incentive
     8  to a recipient business organization  pursuant  to  an  initial  certif-
     9  ication  or  an initial designation made by the department under article
    10  eighteen-A or eighteen-B of the general municipal law;
    11    (2) all successor and subsequent programs and tax credits designed  to
    12  promote  large business relocations and expansions. "Development assist-
    13  ance" does not include tax increment financing, assistance  provided  by
    14  industrial  development  agencies under article eighteen-A or eighteen-B
    15  of the general municipal law pursuant to local ordinance,  participation
    16  loans,  or  financial transactions through statutorily authorized finan-
    17  cial intermediaries in support of small business loans  and  investments
    18  or given in connection with the development of affordable housing.
    19    (f) "Development assistance agreement" means any agreement executed by
    20  the  state  granting  body and the recipient setting forth the terms and
    21  conditions of development assistance to be  provided  to  the  recipient
    22  consistent  with  the  final  application  for  development  assistance,
    23  including but not limited to the date of assistance,  submitted  to  and
    24  approved by the state granting body.
    25    (g)  "Full-time,  permanent job" means a job in which the new employee
    26  works for the recipient at a rate of  at  least  thirty-five  hours  per
    27  week.
    28    (h)  "New  employee" means a full-time, permanent employee who repres-
    29  ents a net increase in the number of the  recipient's  employees  state-
    30  wide.  "New  employee"  includes an employee who previously filled a new
    31  employee position with the recipient who was rehired or called back from
    32  a layoff that occurs during or following the base years.
    33    The term "new employee" does not include any of the following:
    34    (1) An employee of the recipient who performs a job that was previous-
    35  ly performed by another employee in this state, if that job  existed  in
    36  this state for at least six months before hiring the employee.
    37    (2) A child, grandchild, parent, or spouse, other than a spouse who is
    38  legally  separated  from  the  individual,  of  any individual who has a
    39  direct or indirect ownership interest of at least five  percent  in  the
    40  profits, capital, or value of any member of the recipient.
    41    (i)  "Part-time  job"  means a job in which the new employee works for
    42  the recipient at a rate of less than thirty-five hours per week.
    43    (j) "Recipient" means any business that receives economic  development
    44  assistance.  A  business  is any corporation, limited liability company,
    45  partnership, joint venture, association, sole proprietorship,  or  other
    46  legally recognized entity.
    47    (k)  "Retained  employee" means any employee defined as having a full-
    48  time or full-time equivalent job preserved at  a  specific  facility  or
    49  site,  the  continuance  of which is threatened by a specific and demon-
    50  strable threat, which shall be specified in the application for develop-
    51  ment assistance.
    52    (l) "Specific project site" means that distinct  operational  unit  to
    53  which any development assistance is applied.
    54    (m)  "State  granting  body"  means  the  department,  any other state
    55  department or state agency that provides development assistance that has

        S. 3364--A                          3
     1  reporting requirements under this article, and any successor agencies to
     2  any of the preceding.
     3    (n) "Temporary job" means a job in which the new employee is hired for
     4  a specific duration of time or season.
     5    (o) "Value of assistance" means the face value of any form of develop-
     6  ment assistance.
     7  § 1402. Unified economic development budget.
     8    (a)  For each state fiscal year ending on or after June thirtieth, two
     9  thousand eighteen, the department shall submit an annual unified econom-
    10  ic development budget to the governor, senate and assembly. The  unified
    11  economic  development  budget shall be due within three months after the
    12  end of the fiscal year, and  shall  present  all  types  of  development
    13  assistance granted during the prior fiscal year, including:
    14    (1) The aggregate amount of uncollected or diverted state tax revenues
    15  resulting  from each type of development assistance provided pursuant to
    16  law, as reported to the department  on  tax  returns  filed  during  the
    17  fiscal year.
    18    (2) All state development assistance.
    19    (b)  All  data  contained  in  the unified economic development budget
    20  presented to the governor, senate and assembly shall be fully subject to
    21  the freedom of information act.
    22    (c) The department shall submit a report of the  amounts  in  subpara-
    23  graph  one of paragraph (a) of this section to the department, which may
    24  append such report to the unified  economic  development  budget  rather
    25  than separately reporting such amounts.
    26  § 1403. Standardized applications for state development assistance.
    27    (a)  All  final  applications submitted to the department or any other
    28  state granting body requesting development assistance shall contain,  at
    29  a minimum:
    30    (1)  An application tracking number that is specific to both the state
    31  granting agency and to each application.
    32    (2) The office mailing address, office  telephone  number,  and  chief
    33  officer of the granting body.
    34    (3)  The office mailing address, telephone number, and the name of the
    35  chief officer of the applicant or authorized designee for  the  specific
    36  project site for which development assistance is requested.
    37    (4)  The applicant's total number of employees at the specific project
    38  site on the date that the application is submitted to the state granting
    39  body, including the number of full-time, permanent jobs, the  number  of
    40  part-time jobs, and the number of temporary jobs.
    41    (5)  The  type of development assistance and value of assistance being
    42  requested.
    43    (6) The number of jobs to be created and retained or both created  and
    44  retained  by  the  applicant  as a result of the development assistance,
    45  including the number of full-time, permanent jobs, the number  of  part-
    46  time jobs, and the number of temporary jobs.
    47    (7)  A  detailed  list  of  the  occupation or job classifications and
    48  number of new employees or retained employees to be hired in  full-time,
    49  permanent  jobs,  a  schedule  of  anticipated starting dates of the new
    50  hires and the anticipated average wage by occupation or job  classifica-
    51  tion  and  total  payroll  to  be created as a result of the development
    52  assistance.
    53    (8) A list of all other  forms  of  development  assistance  that  the
    54  applicant  is  requesting  for the specific project site and the name of
    55  each state granting body from which that development assistance is being
    56  requested.

        S. 3364--A                          4
     1    (9) A narrative, if necessary, describing why the development  assist-
     2  ance is needed and how the applicant's use of the development assistance
     3  may reduce employment at any site in New York.
     4    (10)  A  certification by the chief officer of the applicant or his or
     5  her authorized designee that the information contained in  the  applica-
     6  tion  submitted  to  the  granting body contains no knowing misrepresen-
     7  tation of material facts upon which eligibility for development  assist-
     8  ance is based.
     9    (b)  Every state granting body either shall complete, or shall require
    10  the applicant to complete, an application form that  meets  the  minimum
    11  requirements  as  prescribed  in  this  section  each  time an applicant
    12  applies for development assistance covered by this article.
    13    (c) The department shall have the discretion to modify  any  standard-
    14  ized  application  for state development assistance required under para-
    15  graph (a) of this section for any grants that are not given as an incen-
    16  tive to a recipient business organization.
    17  § 1404. State development assistance disclosure.
    18    (a) Beginning February first, two  thousand  nineteen  and  each  year
    19  thereafter,  every  state  granting  body shall submit to the department
    20  copies of all development assistance agreements that it approved in  the
    21  prior calendar year.
    22    (b)  For  each  development assistance agreement for which the date of
    23  assistance has occurred in the prior calendar year, each recipient shall
    24  submit to the department a progress report that shall include,  but  not
    25  be limited to, the following:
    26    (1) The application tracking number.
    27    (2)  The office mailing address, telephone number, and the name of the
    28  chief officer of the granting body.
    29    (3) The office mailing address, telephone number, and the name of  the
    30  chief  officer  of the applicant or authorized designee for the specific
    31  project site for which the development assistance was  approved  by  the
    32  state granting body.
    33    (4) The type of development assistance program and value of assistance
    34  that was approved by the state granting body.
    35    (5)  The applicant's total number of employees at the specific project
    36  site on the date that the application was submitted to the state  grant-
    37  ing  body  and the applicant's total number of employees at the specific
    38  project site on the date of the report, including the  number  of  full-
    39  time,  permanent  jobs,  the number of part-time jobs, and the number of
    40  temporary jobs, and a computation of the gain or loss of  jobs  in  each
    41  category.
    42    (6)  The  number of new employees and retained employees the applicant
    43  stated in its development assistance agreement, if any, if not, then  in
    44  its  application,  would be created by the development assistance broken
    45  down by full-time, permanent, part-time, and temporary.
    46    (7) A sworn declaration of whether the recipient is in compliance with
    47  the development assistance agreement.
    48    (8) A detailed list of  the  occupation  or  job  classifications  and
    49  number  of new employees or retained employees to be hired in full-time,
    50  permanent jobs, a schedule of anticipated  starting  dates  of  the  new
    51  hires  and  the  actual average wage by occupation or job classification
    52  and total payroll to be created as a result of the  development  assist-
    53  ance.
    54    (9)  A  narrative, if necessary, describing how the recipient's use of
    55  the development assistance during the reporting year has reduced employ-
    56  ment at any site in New York.

        S. 3364--A                          5
     1    (10) A certification by the chief officer of the applicant or  his  or
     2  her  authorized  designee  that  the  information in the progress report
     3  contains no knowing  misrepresentation  of  material  facts  upon  which
     4  eligibility for development assistance is based.
     5    (c)  The  state  granting body, or a successor agency, shall have full
     6  authority to verify information contained in  the  recipient's  progress
     7  report, including the authority to inspect the specific project site and
     8  inspect the records of the recipient that are subject to the development
     9  assistance agreement.
    10    (d)  By  June  first,  two thousand nineteen and by June first of each
    11  year thereafter, the department shall compile and publish  all  data  in
    12  all of the progress reports in both written and electronic form.
    13    (e)  If  a  recipient  of  development assistance fails to comply with
    14  paragraph (b) of this section, the department shall, within twenty work-
    15  ing days after the reporting submittal deadlines set forth in such para-
    16  graph (b), suspend within thirty-three working days any current develop-
    17  ment assistance to such  recipient  under  its  control,  and  shall  be
    18  prohibited  from completing any current or providing any future develop-
    19  ment assistance until it receives proof that  such  recipient  has  come
    20  into compliance with the requirements of paragraph (b) of this section.
    21    (f) The department shall have the discretion to modify the information
    22  required  in  the  progress  report required under paragraph (b) of this
    23  section consistent with the disclosure purpose of this section  for  any
    24  grants that are not given as an incentive to a recipient business organ-
    25  ization.
    26  § 1405. Recapture.
    27    (a) All development assistance agreements shall contain, at a minimum,
    28  the following recapture provisions:
    29    (1) The recipient must (i) make the level of capital investment in the
    30  economic  development  project  specified  in the development assistance
    31  agreement; (ii) create or retain, or both, the requisite number of jobs,
    32  paying not less than specified wages for the created and retained  jobs,
    33  within and for the duration of the time period specified in the develop-
    34  ment assistance programs and the development assistance agreement.
    35    (2) If the recipient fails to create or retain the requisite number of
    36  jobs  within  and  for  the  time  period  specified, in the development
    37  assistance programs and the development assistance agreement, the recip-
    38  ient shall be deemed to no longer qualify for the state economic assist-
    39  ance and the applicable recapture provisions shall take effect.
    40    (3) If the recipient receives state economic assistance in the form of
    41  an empire zone designation pursuant to article eighteen-B of the general
    42  municipal law or an industrial development zone designation pursuant  to
    43  article  eighteen-A of the general municipal law and the recipient fails
    44  to create or retain the requisite number of jobs, as determined  by  the
    45  development  assistance  agreement  within the requisite period of time,
    46  the recipient shall be required to pay to the state the full  amount  of
    47  the  state  tax  exemption  that  it received as a result of such desig-
    48  nation.
    49    (4) If the recipient receives a grant or loan pursuant  to  an  empire
    50  zone designation pursuant to article eighteen-B of the general municipal
    51  law  or  an  industrial development zone designation pursuant to article
    52  eighteen-A of the general municipal  law  and  the  recipient  fails  to
    53  create  or  retain  the  requisite number of jobs for the requisite time
    54  period, as provided in the development assistance agreement, the recipi-
    55  ent shall be required to repay to the state a pro  rata  amount  of  the
    56  grant;  that  amount  shall  reflect  the  percentage  of the deficiency

        S. 3364--A                          6
     1  between the requisite number of jobs to be created or  retained  by  the
     2  recipient and the actual number of such jobs in existence as of the date
     3  the department determines the recipient is in breach of the job creation
     4  or  retention  covenants  contained in the development assistance agree-
     5  ment. If the recipient of development assistance under such designations
     6  ceases operations at the specific project site during a five year period
     7  commencing on the date of assistance, the recipient shall be required to
     8  repay the entire amount of the grant or to accelerate repayment  of  the
     9  loan back to the state.
    10    (5) If the recipient receives a tax credit under article eighteen-A or
    11  eighteen-B  of  the  general  municipal  law, the development assistance
    12  agreement shall provide that (i)  if  the  number  of  new  or  retained
    13  employees  falls below the requisite number set forth in the development
    14  assistance agreement, the allowance of the credit shall be automatically
    15  suspended until the number of  new  and  retained  employees  equals  or
    16  exceeds  the  requisite  number in the development assistance agreement;
    17  (ii) if the recipient discontinues operations at  the  specific  project
    18  site  during the first five years of the term of the development assist-
    19  ance agreement, the recipient shall forfeit all  credits  taken  by  the
    20  recipient  during  such  five  year  period; and (iii) in the event of a
    21  revocation or suspension of the credit, the  department  shall  initiate
    22  proceedings  against  the recipient to recover wrongfully exempted state
    23  income taxes and the recipient shall promptly repay  to  the  department
    24  any  wrongfully  exempted  state  income  taxes. The forfeited amount of
    25  credits shall be deemed assessed on the date  the  department  initiates
    26  proceedings  against  such  recipient  and  the recipient shall promptly
    27  repay to the department any wrongfully exempted state income taxes.
    28    (b) The commissioner of  taxation  and  finance  may  elect  to  waive
    29  enforcement  of any contractual provision arising out of the development
    30  assistance agreement required by this article based on  a  finding  that
    31  the  waiver  is necessary to avert an imminent and demonstrable hardship
    32  to the recipient that may  result  in  such  recipient's  insolvency  or
    33  discharge  of workers. If a waiver is granted, the recipient shall agree
    34  to a contractual modification, including recapture  provisions,  to  the
    35  development  assistance  agreement.  The existence of any waiver granted
    36  pursuant to paragraph (c) of this section, the date of the  granting  of
    37  such  waiver, and a brief summary of the reasons supporting the granting
    38  of such waiver shall be disclosed consistent with the provisions of this
    39  section.
    40    (c) Beginning June first, two thousand eighteen, the department  shall
    41  annually compile a report on the outcomes and effectiveness of recapture
    42  provisions  by  program,  including  but  not  limited to: (i) the total
    43  number of companies that receive development assistance  as  defined  in
    44  this article; (ii) the total number of recipients in violation of devel-
    45  opment  agreements  with  the  department;  (iii)  the  total  number of
    46  completed recapture efforts; (iv) the total number of recapture  efforts
    47  initiated;  and  (v) the number of waivers granted. Such report shall be
    48  disclosed consistent with the provisions  of  section  fourteen  hundred
    49  four of this article.
    50    §  3.  The  public  authorities law is amended by adding a new article
    51  10-E to read as follows:
    52                                 ARTICLE 10-E
    53                CORPORATE ACCOUNTABILITY FOR TAX EXPENDITURES
    54  Section 3980. Definitions.
    55          3981. Unified economic development budget.

        S. 3364--A                          7
     1          3982. Standardized applications for  state  development  assist-
     2                  ance.
     3          3983. State development assistance disclosure.
     4          3984. Recapture.
     5    § 3980. Definitions. As used in this article:
     6    1.  "Base years" means the first two complete calendar years following
     7  the effective date of a recipient receiving development assistance.
     8    2. "Date of assistance" means the commencement date of the  assistance
     9  agreement,  which date triggers the period during which the recipient is
    10  obligated to create or  retain  jobs  and  continue  operations  at  the
    11  specific project site.
    12    3. "Default" means that a recipient has not achieved its job creation,
    13  job  retention,  or  wage  or  benefit  goals, as applicable, during the
    14  prescribed period therefor.
    15    4. "Department" means, unless otherwise noted, the department of taxa-
    16  tion and finance or any successor agency.
    17    5. "Development assistance" means (a) tax credits and  tax  exemptions
    18  (other  than  given under tax increment financing) given as an incentive
    19  to a recipient public authority pursuant to an initial certification  or
    20  an  initial  designation made by the department under article eighteen-A
    21  or eighteen-B of the general municipal law;
    22    (b) all successor and subsequent programs and tax credits designed  to
    23  promote  large business relocations and expansions. "Development assist-
    24  ance" does not include tax increment financing, assistance  provided  by
    25  industrial  development  agencies under article eighteen-A or eighteen-B
    26  of the general municipal law pursuant to local ordinance,  participation
    27  loans,  or  financial transactions through statutorily authorized finan-
    28  cial intermediaries in support of small business loans  and  investments
    29  or given in connection with the development of affordable housing.
    30    6.  "Development assistance agreement" means any agreement executed by
    31  the state granting body and the recipient setting forth  the  terms  and
    32  conditions  of  development  assistance  to be provided to the recipient
    33  consistent  with  the  final  application  for  development  assistance,
    34  including  but  not  limited to the date of assistance, submitted to and
    35  approved by the state granting body.
    36    7. "Full-time, permanent job" means a job in which  the  new  employee
    37  works  for  the  recipient  at  a rate of at least thirty-five hours per
    38  week.
    39    8.  "New employee" means a full-time, permanent employee  who  repres-
    40  ents  a  net  increase in the number of the recipient's employees state-
    41  wide. "New employee" includes an employee who previously  filled  a  new
    42  employee position with the recipient who was rehired or called back from
    43  a layoff that occurs during or following the base years.
    44    The term "new employee" does not include any of the following:
    45    (a) An employee of the recipient who performs a job that was previous-
    46  ly  performed  by another employee in this state, if that job existed in
    47  this state for at least six months before hiring the employee.
    48    (b) A child, grandchild, parent, or spouse, other than a spouse who is
    49  legally separated from the individual,  of  any  individual  who  has  a
    50  direct  or  indirect  ownership interest of at least five percent in the
    51  profits, capital, or value of any member of the recipient.
    52    9. "Part-time job" means a job in which the new employee works for the
    53  recipient at a rate of less than thirty-five hours per week.
    54    10. "Recipient" means any public authority created  pursuant  to  this
    55  chapter  that  receives economic development assistance or other legally
    56  recognized entity of such a public authority.

        S. 3364--A                          8
     1    11. "Retained employee" means any employee defined as having  a  full-
     2  time  or  full-time  equivalent  job preserved at a specific facility or
     3  site, the continuance of which is threatened by a  specific  and  demon-
     4  strable threat, which shall be specified in the application for develop-
     5  ment assistance.
     6    12.  "Specific  project  site" means that distinct operational unit to
     7  which any development assistance is applied.
     8    13. "State granting  body"  means  the  department,  any  other  state
     9  department or state agency that provides development assistance that has
    10  reporting requirements under this article, and any successor agencies to
    11  any of the preceding.
    12    14. "Temporary job" means a job in which the new employee is hired for
    13  a specific duration of time or season.
    14    15. "Value of assistance" means the face value of any form of develop-
    15  ment assistance.
    16    § 3981. Unified economic development budget.  1. For each state fiscal
    17  year  ending  on  or  after  June  thirtieth, two thousand eighteen, the
    18  department shall submit an annual unified economic development budget to
    19  the governor, senate and  assembly.  The  unified  economic  development
    20  budget  shall  be  due  within  three months after the end of the fiscal
    21  year, and shall present all  types  of  development  assistance  granted
    22  during the prior fiscal year, including:
    23    (a) The aggregate amount of uncollected or diverted state tax revenues
    24  resulting  from each type of development assistance provided pursuant to
    25  law, as reported to the department  on  tax  returns  filed  during  the
    26  fiscal year.
    27    (b) All state development assistance.
    28    2.  All  data  contained  in  the  unified economic development budget
    29  presented to the governor, senate and assembly shall be fully subject to
    30  the freedom of information act.
    31    3. The department shall submit a report of the  amounts  in  paragraph
    32  (a)  of  subdivision  one  of  this section to the department, which may
    33  append such report to the unified  economic  development  budget  rather
    34  than separately reporting such amounts.
    35    §  3982.  Standardized  applications for state development assistance.
    36  1. All final applications submitted to the department or any other state
    37  granting body requesting development  assistance  shall  contain,  at  a
    38  minimum:
    39    (a)  An application tracking number that is specific to both the state
    40  granting agency and to each application.
    41    (b) The office mailing address, office  telephone  number,  and  chief
    42  officer of the granting body.
    43    (c)  The office mailing address, telephone number, and the name of the
    44  chief officer of the applicant or authorized designee for  the  specific
    45  project site for which development assistance is requested.
    46    (d)  The applicant's total number of employees at the specific project
    47  site on the date that the application is submitted to the state granting
    48  body, including the number of full-time, permanent jobs, the  number  of
    49  part-time jobs, and the number of temporary jobs.
    50    (e)  The  type of development assistance and value of assistance being
    51  requested.
    52    (f) The number of jobs to be created and retained or both created  and
    53  retained  by  the  applicant  as a result of the development assistance,
    54  including the number of full-time, permanent jobs, the number  of  part-
    55  time jobs, and the number of temporary jobs.

        S. 3364--A                          9
     1    (g)  A  detailed  list  of  the  occupation or job classifications and
     2  number of new employees or retained employees to be hired in  full-time,
     3  permanent  jobs,  a  schedule  of  anticipated starting dates of the new
     4  hires and the anticipated average wage by occupation or job  classifica-
     5  tion  and  total  payroll  to  be created as a result of the development
     6  assistance.
     7    (h) A list of all other  forms  of  development  assistance  that  the
     8  applicant  is  requesting  for the specific project site and the name of
     9  each state granting body from which that development assistance is being
    10  requested.
    11    (i) A narrative, if necessary, describing why the development  assist-
    12  ance is needed and how the applicant's use of the development assistance
    13  may reduce employment at any site in New York.
    14    (j)  A  certification  by the chief officer of the applicant or his or
    15  her authorized designee that the information contained in  the  applica-
    16  tion  submitted  to  the  granting body contains no knowing misrepresen-
    17  tation of material facts upon which eligibility for development  assist-
    18  ance is based.
    19    2.  Every  state granting body either shall complete, or shall require
    20  the applicant to complete, an application form that  meets  the  minimum
    21  requirements  as  prescribed  in  this  section  each  time an applicant
    22  applies for development assistance covered by this article.
    23    3. The department shall have the discretion to modify any standardized
    24  application for state development assistance required under  subdivision
    25  one of this section for any grants that are not given as an incentive to
    26  a recipient public authority.
    27    §  3983. State development assistance disclosure.  1. Beginning Febru-
    28  ary first, two thousand nineteen and each year thereafter,  every  state
    29  granting  body  shall submit to the department copies of all development
    30  assistance agreements that it approved in the prior calendar year.
    31    2. For each development assistance agreement for  which  the  date  of
    32  assistance has occurred in the prior calendar year, each recipient shall
    33  submit  to  the department a progress report that shall include, but not
    34  be limited to, the following:
    35    (a) The application tracking number.
    36    (b) The office mailing address, telephone number, and the name of  the
    37  chief officer of the granting body.
    38    (c)  The office mailing address, telephone number, and the name of the
    39  chief officer of the applicant or authorized designee for  the  specific
    40  project  site  for  which the development assistance was approved by the
    41  state granting body.
    42    (d) The type of development assistance program and value of assistance
    43  that was approved by the state granting body.
    44    (e) The applicant's total number of employees at the specific  project
    45  site  on the date that the application was submitted to the state grant-
    46  ing body and the applicant's total number of employees at  the  specific
    47  project  site  on  the date of the report, including the number of full-
    48  time, permanent jobs, the number of part-time jobs, and  the  number  of
    49  temporary  jobs,  and  a computation of the gain or loss of jobs in each
    50  category.
    51    (f) The number of new employees and retained employees  the  applicant
    52  stated  in its development assistance agreement, if any, if not, then in
    53  its application, would be created by the development  assistance  broken
    54  down by full-time, permanent, part-time, and temporary.
    55    (g) A sworn declaration of whether the recipient is in compliance with
    56  the development assistance agreement.

        S. 3364--A                         10
     1    (h)  A  detailed  list  of  the  occupation or job classifications and
     2  number of new employees or retained employees to be hired in  full-time,
     3  permanent  jobs,  a  schedule  of  anticipated starting dates of the new
     4  hires and the actual average wage by occupation  or  job  classification
     5  and  total  payroll to be created as a result of the development assist-
     6  ance.
     7    (i) A narrative, if necessary, describing how the recipient's  use  of
     8  the development assistance during the reporting year has reduced employ-
     9  ment at any site in New York.
    10    (j)  A  certification  by the chief officer of the applicant or his or
    11  her authorized designee that the  information  in  the  progress  report
    12  contains  no  knowing  misrepresentation  of  material  facts upon which
    13  eligibility for development assistance is based.
    14    3. The state granting body, or a successor  agency,  shall  have  full
    15  authority  to  verify  information contained in the recipient's progress
    16  report, including the authority to inspect the specific project site and
    17  inspect the records of the recipient that are subject to the development
    18  assistance agreement.
    19    4. By June first, two thousand nineteen and by June first of each year
    20  thereafter, the department shall compile and publish all data in all  of
    21  the progress reports in both written and electronic form.
    22    5.  If  a  recipient  of  development  assistance fails to comply with
    23  subdivision two of this section, the  department  shall,  within  twenty
    24  working  days  after the reporting submittal deadlines set forth in such
    25  subdivision two, suspend within thirty-three working  days  any  current
    26  development assistance to such recipient under its control, and shall be
    27  prohibited  from completing any current or providing any future develop-
    28  ment assistance until it receives proof that  such  recipient  has  come
    29  into  compliance  with  the  requirements  of  subdivision  two  of this
    30  section.
    31    6. The department shall have the discretion to modify the  information
    32  required  in  the progress report required under subdivision two of this
    33  section consistent with the disclosure purpose of this section  for  any
    34  grants that are not given as an incentive to a recipient public authori-
    35  ty.
    36    §  3984.  Recapture.    1. All development assistance agreements shall
    37  contain, at a minimum, the following recapture provisions:
    38    (a) The recipient must (i) make the level of capital investment in the
    39  economic development project specified  in  the  development  assistance
    40  agreement; (ii) create or retain, or both, the requisite number of jobs,
    41  paying  not less than specified wages for the created and retained jobs,
    42  within and for the duration of the time period specified in the develop-
    43  ment assistance programs and the development assistance agreement.
    44    (b) If the recipient fails to create or retain the requisite number of
    45  jobs within and for  the  time  period  specified,  in  the  development
    46  assistance programs and the development assistance agreement, the recip-
    47  ient shall be deemed to no longer qualify for the state economic assist-
    48  ance and the applicable recapture provisions shall take effect.
    49    (c) If the recipient receives state economic assistance in the form of
    50  an empire zone designation pursuant to article eighteen-B of the general
    51  municipal  law or an industrial development zone designation pursuant to
    52  article eighteen-A of the general municipal law and the recipient  fails
    53  to  create  or retain the requisite number of jobs, as determined by the
    54  development assistance agreement within the requisite  period  of  time,
    55  the  recipient  shall be required to pay to the state the full amount of

        S. 3364--A                         11
     1  the state tax exemption that it received as  a  result  of  such  desig-
     2  nation.
     3    (d)  If  the  recipient receives a grant or loan pursuant to an empire
     4  zone designation pursuant to article eighteen-B of the general municipal
     5  law or an industrial development zone designation  pursuant  to  article
     6  eighteen-A  of  the  general  municipal  law  and the recipient fails to
     7  create or retain the requisite number of jobs  for  the  requisite  time
     8  period, as provided in the development assistance agreement, the recipi-
     9  ent  shall  be  required  to repay to the state a pro rata amount of the
    10  grant; that amount  shall  reflect  the  percentage  of  the  deficiency
    11  between  the  requisite  number of jobs to be created or retained by the
    12  recipient and the actual number of such jobs in existence as of the date
    13  the department determines the recipient is in breach of the job creation
    14  or retention covenants contained in the  development  assistance  agree-
    15  ment. If the recipient of development assistance under such designations
    16  ceases operations at the specific project site during a five year period
    17  commencing on the date of assistance, the recipient shall be required to
    18  repay  the  entire amount of the grant or to accelerate repayment of the
    19  loan back to the state.
    20    (e) If the recipient receives a tax credit under article eighteen-A or
    21  eighteen-B of the general  municipal  law,  the  development  assistance
    22  agreement  shall  provide  that  (i)  if  the  number of new or retained
    23  employees falls below the requisite number set forth in the  development
    24  assistance agreement, the allowance of the credit shall be automatically
    25  suspended  until  the  number  of  new  and retained employees equals or
    26  exceeds the requisite number in the  development  assistance  agreement;
    27  (ii)  if  the  recipient discontinues operations at the specific project
    28  site during the first five years of the term of the development  assist-
    29  ance  agreement,  the  recipient  shall forfeit all credits taken by the
    30  recipient during such five year period; and (iii)  in  the  event  of  a
    31  revocation  or  suspension  of the credit, the department shall initiate
    32  proceedings against the recipient to recover wrongfully  exempted  state
    33  income  taxes  and  the recipient shall promptly repay to the department
    34  any wrongfully exempted state income  taxes.  The  forfeited  amount  of
    35  credits  shall  be  deemed assessed on the date the department initiates
    36  proceedings against such recipient  and  the  recipient  shall  promptly
    37  repay to the department any wrongfully exempted state income taxes.
    38    2.  The  commissioner  of  taxation  and  finance  may  elect to waive
    39  enforcement of any contractual provision arising out of the  development
    40  assistance  agreement  required  by this article based on a finding that
    41  the waiver is necessary to avert an imminent and  demonstrable  hardship
    42  to  the  recipient  that  may  result  in such recipient's insolvency or
    43  discharge of workers. If a waiver is granted, the recipient shall  agree
    44  to  a  contractual  modification, including recapture provisions, to the
    45  development assistance agreement. The existence of  any  waiver  granted
    46  pursuant  to subdivision three of this section, the date of the granting
    47  of such waiver, and a brief summary of the reasons supporting the grant-
    48  ing of such waiver shall be disclosed consistent with the provisions  of
    49  this section.
    50    3.  Beginning  June first, two thousand eighteen, the department shall
    51  annually compile a report on the outcomes and effectiveness of recapture
    52  provisions by program, including but  not  limited  to:  (a)  the  total
    53  number  of authorities that receive development assistance as defined in
    54  this article; (b) the total number of recipients in violation of  devel-
    55  opment agreements with the department; (c) the total number of completed
    56  recapture  efforts; (d) the total number of recapture efforts initiated;

        S. 3364--A                         12
     1  and (e) the number of waivers granted. Such report  shall  be  disclosed
     2  consistent  with  the  provisions of section thirty-nine hundred eighty-
     3  three of this article.
     4    § 4. This act shall take effect on the one hundred twentieth day after
     5  it  shall  have become a law and shall apply to contracts and agreements
     6  entered into on or after such effective date.    Effective  immediately,
     7  the  addition,  amendment and/or repeal of any rule or regulation neces-
     8  sary for the implementation of  this  act  on  its  effective  date  are
     9  authorized to be made on or before such effective date.
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