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A08587 Summary:

BILL NOA08587
 
SAME ASSAME AS S03364
 
SPONSORKavanagh
 
COSPNSR
 
MLTSPNSR
 
Add Art 14 1401 - 1405, BC L; add Art 10-E 3980 - 3984, Pub Auth L
 
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.
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A08587 Text:



 
                STATE OF NEW YORK
        ________________________________________________________________________
 
                                          8587
 
                               2017-2018 Regular Sessions
 
                   IN ASSEMBLY
 
                                      July 10, 2017
                                       ___________
 
        Introduced by M. of A. KAVANAGH -- read once and referred to the Commit-
          tee on Corporations, Authorities and Commissions
 
        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.
    21    (c)  "Default"  means  that  a  recipient  has  not  achieved  its job
    22  creation, job retention, or wage or benefit goals, as applicable, during
    23  the prescribed period therefor.
 
         EXPLANATION--Matter in italics (underscored) is new; matter in brackets
                              [ ] is old law to be omitted.
                                                                   LBD05985-01-7

        A. 8587                             2
 
     1    (d) "Department" means, unless  otherwise  noted,  the  department  of
     2  taxation and finance or any successor agency.
     3    (e)  "Development assistance" means (1) tax credits and tax exemptions
     4  (other than given under tax increment financing) given as  an  incentive
     5  to  a  recipient  business  organization  pursuant to an initial certif-
     6  ication or an initial designation made by the department  under  article
     7  eighteen-A or eighteen-B of the general municipal law;
     8    (2)  all successor and subsequent programs and tax credits designed to
     9  promote large business relocations and expansions. "Development  assist-
    10  ance"  does  not  include  tax  increment financing, assistance provided
    11  under article eighteen-A or eighteen-B  of  the  general  municipal  law
    12  pursuant  to  local  ordinance, participation loans, or financial trans-
    13  actions  through  statutorily  authorized  financial  intermediaries  in
    14  support  of  small business loans and investments or given in connection
    15  with the development of affordable housing.
    16    (f) "Development assistance agreement" means any agreement executed by
    17  the state granting body and the recipient setting forth  the  terms  and
    18  conditions  of  development  assistance  to be provided to the recipient
    19  consistent  with  the  final  application  for  development  assistance,
    20  including  but  not  limited to the date of assistance, submitted to and
    21  approved by the state granting body.
    22    (g) "Full-time, permanent job" means a job in which the  new  employee
    23  works  for  the  recipient  at  a rate of at least thirty-five hours per
    24  week.
    25    (h) "New employee" means a full-time, permanent employee  who  repres-
    26  ents  a  net  increase in the number of the recipient's employees state-
    27  wide. "New employee" includes an employee who previously  filled  a  new
    28  employee position with the recipient who was rehired or called back from
    29  a layoff that occurs during or following the base years.
    30    The term "new employee" does not include any of the following:
    31    (1) An employee of the recipient who performs a job that was previous-
    32  ly  performed  by another employee in this state, if that job existed in
    33  this state for at least six months before hiring the employee.
    34    (2) A child, grandchild, parent, or spouse, other than a spouse who is
    35  legally separated from the individual,  of  any  individual  who  has  a
    36  direct  or  indirect  ownership interest of at least five percent in the
    37  profits, capital, or value of any member of the recipient.
    38    (i) "Part-time job" means a job in which the new  employee  works  for
    39  the recipient at a rate of less than thirty-five hours per week.
    40    (j)  "Recipient" means any business that receives economic development
    41  assistance. A business is any corporation,  limited  liability  company,
    42  partnership,  joint  venture, association, sole proprietorship, or other
    43  legally recognized entity.
    44    (k) "Retained employee" means any employee defined as having  a  full-
    45  time  or  full-time  equivalent  job preserved at a specific facility or
    46  site, the continuance of which is threatened by a  specific  and  demon-
    47  strable threat, which shall be specified in the application for develop-
    48  ment assistance.
    49    (l)  "Specific  project  site" means that distinct operational unit to
    50  which any development assistance is applied.
    51    (m) "State granting  body"  means  the  department,  any  other  state
    52  department or state agency that provides development assistance that has
    53  reporting requirements under this article, and any successor agencies to
    54  any of the preceding.
    55    (n) "Temporary job" means a job in which the new employee is hired for
    56  a specific duration of time or season.

        A. 8587                             3
 
     1    (o) "Value of assistance" means the face value of any form of develop-
     2  ment assistance.
     3  § 1402. Unified economic development budget.
     4    (a)  For each state fiscal year ending on or after June thirtieth, two
     5  thousand eighteen, the department shall submit an annual unified econom-
     6  ic development budget to the governor, senate and assembly. The  unified
     7  economic  development  budget shall be due within three months after the
     8  end of the fiscal year, and  shall  present  all  types  of  development
     9  assistance granted during the prior fiscal year, including:
    10    (1) The aggregate amount of uncollected or diverted state tax revenues
    11  resulting  from each type of development assistance provided pursuant to
    12  law, as reported to the department  on  tax  returns  filed  during  the
    13  fiscal year.
    14    (2) All state development assistance.
    15    (b)  All  data  contained  in  the unified economic development budget
    16  presented to the governor, senate and assembly shall be fully subject to
    17  the freedom of information act.
    18    (c) The department shall submit a report of the  amounts  in  subpara-
    19  graph  one of paragraph (a) of this section to the department, which may
    20  append such report to the unified  economic  development  budget  rather
    21  than separately reporting such amounts.
    22  § 1403. Standardized applications for state development assistance.
    23    (a)  All  final  applications submitted to the department or any other
    24  state granting body requesting development assistance shall contain,  at
    25  a minimum:
    26    (1)  An application tracking number that is specific to both the state
    27  granting agency and to each application.
    28    (2) The office mailing address, office  telephone  number,  and  chief
    29  officer of the granting body.
    30    (3)  The office mailing address, telephone number, and the name of the
    31  chief officer of the applicant or authorized designee for  the  specific
    32  project site for which development assistance is requested.
    33    (4)  The applicant's total number of employees at the specific project
    34  site on the date that the application is submitted to the state granting
    35  body, including the number of full-time, permanent jobs, the  number  of
    36  part-time jobs, and the number of temporary jobs.
    37    (5)  The  type of development assistance and value of assistance being
    38  requested.
    39    (6) The number of jobs to be created and retained or both created  and
    40  retained  by  the  applicant  as a result of the development assistance,
    41  including the number of full-time, permanent jobs, the number  of  part-
    42  time jobs, and the number of temporary jobs.
    43    (7)  A  detailed  list  of  the  occupation or job classifications and
    44  number of new employees or retained employees to be hired in  full-time,
    45  permanent  jobs,  a  schedule  of  anticipated starting dates of the new
    46  hires and the anticipated average wage by occupation or job  classifica-
    47  tion  and  total  payroll  to  be created as a result of the development
    48  assistance.
    49    (8) A list of all other  forms  of  development  assistance  that  the
    50  applicant  is  requesting  for the specific project site and the name of
    51  each state granting body from which that development assistance is being
    52  requested.
    53    (9) A narrative, if necessary, describing why the development  assist-
    54  ance is needed and how the applicant's use of the development assistance
    55  may reduce employment at any site in New York.

        A. 8587                             4
 
     1    (10)  A  certification by the chief officer of the applicant or his or
     2  her authorized designee that the information contained in  the  applica-
     3  tion  submitted  to  the  granting body contains no knowing misrepresen-
     4  tation of material facts upon which eligibility for development  assist-
     5  ance is based.
     6    (b)  Every state granting body either shall complete, or shall require
     7  the applicant to complete, an application form that  meets  the  minimum
     8  requirements  as  prescribed  in  this  section  each  time an applicant
     9  applies for development assistance covered by this article.
    10    (c) The department shall have the discretion to modify  any  standard-
    11  ized  application  for state development assistance required under para-
    12  graph (a) of this section for any grants that are not given as an incen-
    13  tive to a recipient business organization.
    14  § 1404. State development assistance disclosure.
    15    (a) Beginning February first, two  thousand  nineteen  and  each  year
    16  thereafter,  every  state  granting  body shall submit to the department
    17  copies of all development assistance agreements that it approved in  the
    18  prior calendar year.
    19    (b)  For  each  development assistance agreement for which the date of
    20  assistance has occurred in the prior calendar year, each recipient shall
    21  submit to the department a progress report that shall include,  but  not
    22  be limited to, the following:
    23    (1) The application tracking number.
    24    (2)  The office mailing address, telephone number, and the name of the
    25  chief officer of the granting body.
    26    (3) The office mailing address, telephone number, and the name of  the
    27  chief  officer  of the applicant or authorized designee for the specific
    28  project site for which the development assistance was  approved  by  the
    29  state granting body.
    30    (4) The type of development assistance program and value of assistance
    31  that was approved by the state granting body.
    32    (5)  The applicant's total number of employees at the specific project
    33  site on the date that the application was submitted to the state  grant-
    34  ing  body  and the applicant's total number of employees at the specific
    35  project site on the date of the report, including the  number  of  full-
    36  time,  permanent  jobs,  the number of part-time jobs, and the number of
    37  temporary jobs, and a computation of the gain or loss of  jobs  in  each
    38  category.
    39    (6)  The  number of new employees and retained employees the applicant
    40  stated in its development assistance agreement, if any, if not, then  in
    41  its  application,  would be created by the development assistance broken
    42  down by full-time, permanent, part-time, and temporary.
    43    (7) A sworn declaration of whether the recipient is in compliance with
    44  the development assistance agreement.
    45    (8) A detailed list of  the  occupation  or  job  classifications  and
    46  number  of new employees or retained employees to be hired in full-time,
    47  permanent jobs, a schedule of anticipated  starting  dates  of  the  new
    48  hires  and  the  actual average wage by occupation or job classification
    49  and total payroll to be created as a result of the  development  assist-
    50  ance.
    51    (9)  A  narrative, if necessary, describing how the recipient's use of
    52  the development assistance during the reporting year has reduced employ-
    53  ment at any site in New York.
    54    (10) A certification by the chief officer of the applicant or  his  or
    55  her  authorized  designee  that  the  information in the progress report

        A. 8587                             5
 
     1  contains no knowing  misrepresentation  of  material  facts  upon  which
     2  eligibility for development assistance is based.
     3    (c)  The  state  granting body, or a successor agency, shall have full
     4  authority to verify information contained in  the  recipient's  progress
     5  report, including the authority to inspect the specific project site and
     6  inspect the records of the recipient that are subject to the development
     7  assistance agreement.
     8    (d)  By  June  first,  two thousand nineteen and by June first of each
     9  year thereafter, the department shall compile and publish  all  data  in
    10  all of the progress reports in both written and electronic form.
    11    (e)  If  a  recipient  of  development assistance fails to comply with
    12  paragraph (b) of this section, the department shall, within twenty work-
    13  ing days after the reporting submittal deadlines set forth in such para-
    14  graph (b), suspend within thirty-three working days any current develop-
    15  ment assistance to such  recipient  under  its  control,  and  shall  be
    16  prohibited  from completing any current or providing any future develop-
    17  ment assistance until it receives proof that  such  recipient  has  come
    18  into compliance with the requirements of paragraph (b) of this section.
    19    (f) The department shall have the discretion to modify the information
    20  required  in  the  progress  report required under paragraph (b) of this
    21  section consistent with the disclosure purpose of this section  for  any
    22  grants that are not given as an incentive to a recipient business organ-
    23  ization.
    24  § 1405. Recapture.
    25    (a) All development assistance agreements shall contain, at a minimum,
    26  the following recapture provisions:
    27    (1) The recipient must (i) make the level of capital investment in the
    28  economic  development  project  specified  in the development assistance
    29  agreement; (ii) create or retain, or both, the requisite number of jobs,
    30  paying not less than specified wages for the created and retained  jobs,
    31  within and for the duration of the time period specified in the develop-
    32  ment assistance programs and the development assistance agreement.
    33    (2) If the recipient fails to create or retain the requisite number of
    34  jobs  within  and  for  the  time  period  specified, in the development
    35  assistance programs and the development assistance agreement, the recip-
    36  ient shall be deemed to no longer qualify for the state economic assist-
    37  ance and the applicable recapture provisions shall take effect.
    38    (3) If the recipient receives state economic assistance in the form of
    39  an empire zone designation pursuant to article eighteen-B of the general
    40  municipal law or an industrial development zone designation pursuant  to
    41  article  eighteen-A of the general municipal law and the recipient fails
    42  to create or retain the requisite number of jobs, as determined  by  the
    43  development  assistance  agreement  within the requisite period of time,
    44  the recipient shall be required to pay to the state the full  amount  of
    45  the  state  tax  exemption  that  it received as a result of such desig-
    46  nation.
    47    (4) If the recipient receives a grant or loan pursuant  to  an  empire
    48  zone designation pursuant to article eighteen-B of the general municipal
    49  law  or  an  industrial development zone designation pursuant to article
    50  eighteen-A of the general municipal  law  and  the  recipient  fails  to
    51  create  or  retain  the  requisite number of jobs for the requisite time
    52  period, as provided in the development assistance agreement, the recipi-
    53  ent shall be required to repay to the state a pro  rata  amount  of  the
    54  grant;  that  amount  shall  reflect  the  percentage  of the deficiency
    55  between the requisite number of jobs to be created or  retained  by  the
    56  recipient and the actual number of such jobs in existence as of the date

        A. 8587                             6
 
     1  the department determines the recipient is in breach of the job creation
     2  or  retention  covenants  contained in the development assistance agree-
     3  ment. If the recipient of development assistance under such designations
     4  ceases operations at the specific project site during a five year period
     5  commencing on the date of assistance, the recipient shall be required to
     6  repay  the  entire amount of the grant or to accelerate repayment of the
     7  loan back to the state.
     8    (5) If the recipient receives a tax credit under article eighteen-A or
     9  eighteen-B of the general  municipal  law,  the  development  assistance
    10  agreement  shall  provide  that  (i)  if  the  number of new or retained
    11  employees falls below the requisite number set forth in the  development
    12  assistance agreement, the allowance of the credit shall be automatically
    13  suspended  until  the  number  of  new  and retained employees equals or
    14  exceeds the requisite number in the  development  assistance  agreement;
    15  (ii)  if  the  recipient discontinues operations at the specific project
    16  site during the first five years of the term of the development  assist-
    17  ance  agreement,  the  recipient  shall forfeit all credits taken by the
    18  recipient during such five year period; and (iii)  in  the  event  of  a
    19  revocation  or  suspension  of the credit, the department shall initiate
    20  proceedings against the recipient to recover wrongfully  exempted  state
    21  income  taxes  and  the recipient shall promptly repay to the department
    22  any wrongfully exempted state income  taxes.  The  forfeited  amount  of
    23  credits  shall  be  deemed assessed on the date the department initiates
    24  proceedings against such recipient  and  the  recipient  shall  promptly
    25  repay to the department any wrongfully exempted state income taxes.
    26    (b)  The  commissioner  of  taxation  and  finance  may elect to waive
    27  enforcement of any contractual provision arising out of the  development
    28  assistance  agreement  required  by this article based on a finding that
    29  the waiver is necessary to avert an imminent and  demonstrable  hardship
    30  to  the  recipient  that  may  result  in such recipient's insolvency or
    31  discharge of workers. If a waiver is granted, the recipient shall  agree
    32  to  a  contractual  modification, including recapture provisions, to the
    33  development assistance agreement. The existence of  any  waiver  granted
    34  pursuant  to  paragraph (c) of this section, the date of the granting of
    35  such waiver, and a brief summary of the reasons supporting the  granting
    36  of such waiver shall be disclosed consistent with the provisions of this
    37  section.
    38    (c)  Beginning June first, two thousand eighteen, the department shall
    39  annually compile a report on the outcomes and effectiveness of recapture
    40  provisions by program, including but  not  limited  to:  (i)  the  total
    41  number  of  companies  that receive development assistance as defined in
    42  this article; (ii) the total number of recipients in violation of devel-
    43  opment agreements  with  the  department;  (iii)  the  total  number  of
    44  completed  recapture efforts; (iv) the total number of recapture efforts
    45  initiated; and (v) the number of waivers granted. Such report  shall  be
    46  disclosed  consistent  with  the  provisions of section fourteen hundred
    47  four of this article.
    48    § 3. The public authorities law is amended by  adding  a  new  article
    49  10-E to read as follows:
    50                                 ARTICLE 10-E
    51                CORPORATE ACCOUNTABILITY FOR TAX EXPENDITURES
    52  Section 3980. Definitions.
    53          3981. Unified economic development budget.
    54          3982. Standardized  applications  for  state development assist-
    55                  ance.
    56          3983. State development assistance disclosure.

        A. 8587                             7
 
     1          3984. Recapture.
     2    § 3980. Definitions. As used in this article:
     3    1.  "Base years" means the first two complete calendar years following
     4  the effective date of a recipient receiving development assistance.
     5    2. "Date of assistance" means the commencement date of the  assistance
     6  agreement,  which date triggers the period during which the recipient is
     7  obligated to create or  retain  jobs  and  continue  operations  at  the
     8  specific project site.
     9    3. "Default" means that a recipient has not achieved its job creation,
    10  job  retention,  or  wage  or  benefit  goals, as applicable, during the
    11  prescribed period therefor.
    12    4. "Department" means, unless otherwise noted, the department of taxa-
    13  tion and finance or any successor agency.
    14    5. "Development assistance" means (a) tax credits and  tax  exemptions
    15  (other  than  given under tax increment financing) given as an incentive
    16  to a recipient public authority pursuant to an initial certification  or
    17  an  initial  designation made by the department under article eighteen-A
    18  or eighteen-B of the general municipal law;
    19    (b) all successor and subsequent programs and tax credits designed  to
    20  promote  large business relocations and expansions. "Development assist-
    21  ance" does not include  tax  increment  financing,  assistance  provided
    22  under  article  eighteen-A  or  eighteen-B  of the general municipal law
    23  pursuant to local ordinance, participation loans,  or  financial  trans-
    24  actions  through  statutorily  authorized  financial  intermediaries  in
    25  support of small business loans and investments or given  in  connection
    26  with the development of affordable housing.
    27    6.  "Development assistance agreement" means any agreement executed by
    28  the state granting body and the recipient setting forth  the  terms  and
    29  conditions  of  development  assistance  to be provided to the recipient
    30  consistent  with  the  final  application  for  development  assistance,
    31  including  but  not  limited to the date of assistance, submitted to and
    32  approved by the state granting body.
    33    7. "Full-time, permanent job" means a job in which  the  new  employee
    34  works  for  the  recipient  at  a rate of at least thirty-five hours per
    35  week.
    36    8.  "New employee" means a full-time, permanent employee  who  repres-
    37  ents  a  net  increase in the number of the recipient's employees state-
    38  wide. "New employee" includes an employee who previously  filled  a  new
    39  employee position with the recipient who was rehired or called back from
    40  a layoff that occurs during or following the base years.
    41    The term "new employee" does not include any of the following:
    42    (a) An employee of the recipient who performs a job that was previous-
    43  ly  performed  by another employee in this state, if that job existed in
    44  this state for at least six months before hiring the employee.
    45    (b) A child, grandchild, parent, or spouse, other than a spouse who is
    46  legally separated from the individual,  of  any  individual  who  has  a
    47  direct  or  indirect  ownership interest of at least five percent in the
    48  profits, capital, or value of any member of the recipient.
    49    9. "Part-time job" means a job in which the new employee works for the
    50  recipient at a rate of less than thirty-five hours per week.
    51    10. "Recipient" means any public authority created  pursuant  to  this
    52  chapter  that  receives economic development assistance or other legally
    53  recognized entity of such a public authority.
    54    11. "Retained employee" means any employee defined as having  a  full-
    55  time  or  full-time  equivalent  job preserved at a specific facility or
    56  site, the continuance of which is threatened by a  specific  and  demon-

        A. 8587                             8
 
     1  strable threat, which shall be specified in the application for develop-
     2  ment assistance.
     3    12.  "Specific  project  site" means that distinct operational unit to
     4  which any development assistance is applied.
     5    13. "State granting  body"  means  the  department,  any  other  state
     6  department or state agency that provides development assistance that has
     7  reporting requirements under this article, and any successor agencies to
     8  any of the preceding.
     9    14. "Temporary job" means a job in which the new employee is hired for
    10  a specific duration of time or season.
    11    15. "Value of assistance" means the face value of any form of develop-
    12  ment assistance.
    13    § 3981. Unified economic development budget.  1. For each state fiscal
    14  year  ending  on  or  after  June  thirtieth, two thousand eighteen, the
    15  department shall submit an annual unified economic development budget to
    16  the governor, senate and  assembly.  The  unified  economic  development
    17  budget  shall  be  due  within  three months after the end of the fiscal
    18  year, and shall present all  types  of  development  assistance  granted
    19  during the prior fiscal year, including:
    20    (a) The aggregate amount of uncollected or diverted state tax revenues
    21  resulting  from each type of development assistance provided pursuant to
    22  law, as reported to the department  on  tax  returns  filed  during  the
    23  fiscal year.
    24    (b) All state development assistance.
    25    2.  All  data  contained  in  the  unified economic development budget
    26  presented to the governor, senate and assembly shall be fully subject to
    27  the freedom of information act.
    28    3. The department shall submit a report of the  amounts  in  paragraph
    29  (a)  of  subdivision  one  of  this section to the department, which may
    30  append such report to the unified  economic  development  budget  rather
    31  than separately reporting such amounts.
    32    §  3982.  Standardized  applications for state development assistance.
    33  1. All final applications submitted to the department or any other state
    34  granting body requesting development  assistance  shall  contain,  at  a
    35  minimum:
    36    (a)  An application tracking number that is specific to both the state
    37  granting agency and to each application.
    38    (b) The office mailing address, office  telephone  number,  and  chief
    39  officer of the granting body.
    40    (c)  The office mailing address, telephone number, and the name of the
    41  chief officer of the applicant or authorized designee for  the  specific
    42  project site for which development assistance is requested.
    43    (d)  The applicant's total number of employees at the specific project
    44  site on the date that the application is submitted to the state granting
    45  body, including the number of full-time, permanent jobs, the  number  of
    46  part-time jobs, and the number of temporary jobs.
    47    (e)  The  type of development assistance and value of assistance being
    48  requested.
    49    (f) The number of jobs to be created and retained or both created  and
    50  retained  by  the  applicant  as a result of the development assistance,
    51  including the number of full-time, permanent jobs, the number  of  part-
    52  time jobs, and the number of temporary jobs.
    53    (g)  A  detailed  list  of  the  occupation or job classifications and
    54  number of new employees or retained employees to be hired in  full-time,
    55  permanent  jobs,  a  schedule  of  anticipated starting dates of the new
    56  hires and the anticipated average wage by occupation or job  classifica-

        A. 8587                             9
 
     1  tion  and  total  payroll  to  be created as a result of the development
     2  assistance.
     3    (h)  A  list  of  all  other  forms of development assistance that the
     4  applicant is requesting for the specific project site and  the  name  of
     5  each state granting body from which that development assistance is being
     6  requested.
     7    (i)  A narrative, if necessary, describing why the development assist-
     8  ance is needed and how the applicant's use of the development assistance
     9  may reduce employment 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 contained in the applica-
    12  tion submitted to the granting body  contains  no  knowing  misrepresen-
    13  tation  of material facts upon which eligibility for development assist-
    14  ance is based.
    15    2. Every state granting body either shall complete, or  shall  require
    16  the  applicant  to  complete, an application form that meets the minimum
    17  requirements as prescribed  in  this  section  each  time  an  applicant
    18  applies for development assistance covered by this article.
    19    3. The department shall have the discretion to modify any standardized
    20  application  for state development assistance required under subdivision
    21  one of this section for any grants that are not given as an incentive to
    22  a recipient public authority.
    23    § 3983. State development assistance disclosure.  1. Beginning  Febru-
    24  ary  first,  two thousand nineteen and each year thereafter, every state
    25  granting body shall submit to the department copies of  all  development
    26  assistance agreements that it approved in the prior calendar year.
    27    2.  For  each  development  assistance agreement for which the date of
    28  assistance has occurred in the prior calendar year, each recipient shall
    29  submit to the department a progress report that shall include,  but  not
    30  be limited to, the following:
    31    (a) The application tracking number.
    32    (b)  The office mailing address, telephone number, and the name of the
    33  chief officer of the granting body.
    34    (c) 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 the development assistance was  approved  by  the
    37  state granting body.
    38    (d) The type of development assistance program and value of assistance
    39  that was approved by the state granting body.
    40    (e)  The applicant's total number of employees at the specific project
    41  site on the date that the application was submitted to the state  grant-
    42  ing  body  and the applicant's total number of employees at the specific
    43  project site on the date of the report, including the  number  of  full-
    44  time,  permanent  jobs,  the number of part-time jobs, and the number of
    45  temporary jobs, and a computation of the gain or loss of  jobs  in  each
    46  category.
    47    (f)  The  number of new employees and retained employees the applicant
    48  stated in its development assistance agreement, if any, if not, then  in
    49  its  application,  would be created by the development assistance broken
    50  down by full-time, permanent, part-time, and temporary.
    51    (g) A sworn declaration of whether the recipient is in compliance with
    52  the development assistance agreement.
    53    (h) A detailed list of  the  occupation  or  job  classifications  and
    54  number  of new employees or retained employees to be hired in full-time,
    55  permanent jobs, a schedule of anticipated  starting  dates  of  the  new
    56  hires  and  the  actual average wage by occupation or job classification

        A. 8587                            10
 
     1  and total payroll to be created as a result of the  development  assist-
     2  ance.
     3    (i)  A  narrative, if necessary, describing how the recipient's use of
     4  the development assistance during the reporting year has reduced employ-
     5  ment at any site in New York.
     6    (j) A certification by the chief officer of the applicant  or  his  or
     7  her  authorized  designee  that  the  information in the progress report
     8  contains no knowing  misrepresentation  of  material  facts  upon  which
     9  eligibility for development assistance is based.
    10    3.  The  state  granting  body, or a successor agency, shall have full
    11  authority to verify information contained in  the  recipient's  progress
    12  report, including the authority to inspect the specific project site and
    13  inspect the records of the recipient that are subject to the development
    14  assistance agreement.
    15    4. By June first, two thousand nineteen and by June first of each year
    16  thereafter,  the department shall compile and publish all data in all of
    17  the progress reports in both written and electronic form.
    18    5. If a recipient of  development  assistance  fails  to  comply  with
    19  subdivision  two  of  this  section, the department shall, within twenty
    20  working days after the reporting submittal deadlines set forth  in  such
    21  subdivision  two,  suspend  within thirty-three working days any current
    22  development assistance to such recipient under its control, and shall be
    23  prohibited from completing any current or providing any future  develop-
    24  ment  assistance  until  it  receives proof that such recipient has come
    25  into compliance  with  the  requirements  of  subdivision  two  of  this
    26  section.
    27    6.  The department shall have the discretion to modify the information
    28  required in the progress report required under subdivision two  of  this
    29  section  consistent  with the disclosure purpose of this section for any
    30  grants that are not given as an incentive to a recipient public authori-
    31  ty.
    32    § 3984. Recapture.   1. All development  assistance  agreements  shall
    33  contain, at a minimum, the following recapture provisions:
    34    (a) The recipient must (i) make the level of capital investment in the
    35  economic  development  project  specified  in the development assistance
    36  agreement; (ii) create or retain, or both, the requisite number of jobs,
    37  paying not less than specified wages for the created and retained  jobs,
    38  within and for the duration of the time period specified in the develop-
    39  ment assistance programs and the development assistance agreement.
    40    (b) If the recipient fails to create or retain the requisite number of
    41  jobs  within  and  for  the  time  period  specified, in the development
    42  assistance programs and the development assistance agreement, the recip-
    43  ient shall be deemed to no longer qualify for the state economic assist-
    44  ance and the applicable recapture provisions shall take effect.
    45    (c) If the recipient receives state economic assistance in the form of
    46  an empire zone designation pursuant to article eighteen-B of the general
    47  municipal law or an industrial development zone designation pursuant  to
    48  article  eighteen-A of the general municipal law and the recipient fails
    49  to create or retain the requisite number of jobs, as determined  by  the
    50  development  assistance  agreement  within the requisite period of time,
    51  the recipient shall be required to pay to the state the full  amount  of
    52  the  state  tax  exemption  that  it received as a result of such desig-
    53  nation.
    54    (d) If the recipient receives a grant or loan pursuant  to  an  empire
    55  zone designation pursuant to article eighteen-B of the general municipal
    56  law  or  an  industrial development zone designation pursuant to article

        A. 8587                            11

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

        A. 8587                            12
 
     1  entered  into  on  or after such effective date.  Effective immediately,
     2  the addition, amendment and/or repeal of any rule or  regulation  neces-
     3  sary  for  the  implementation  of  this  act  on its effective date are
     4  authorized to be made on or before such effective date.
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