Enacts the "corporate disclosure, responsibility, and taxpayer protection act"; establishes principles for corporations receiving state assistance; provides for disclosure of real property tax reductions and abatements, standardized applications for development assistance, disclosure of development assistance, job creation and quality standards, and recapture in the event of development assistance defaults.
STATE OF NEW YORK
________________________________________________________________________
6253
2013-2014 Regular Sessions
IN ASSEMBLY
March 25, 2013
___________
Introduced by M. of A. BRENNAN, GALEF, JACOBS, ORTIZ -- Multi-Sponsored
by -- M. of A. FARRELL, LIFTON, LUPARDO, MILLMAN, PERRY, WEISENBERG
-- read once and referred to the Committee on Corporations, Authori-
ties and Commissions
AN ACT to amend the business corporation law, in relation to enacting
the "corporate disclosure, responsibility, and taxpayer protection
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 disclosure, responsibility, and taxpayer protection act".
3 § 2. Legislative findings and intent. The legislature finds that,
4 despite an increase in spending for the purpose of corporate develop-
5 ment, in both expenditures and other benefits, the real wage levels of
6 the state's average working families have suffered years of decline and
7 stagnation, while corporations and other business entities have reaped
8 tremendous benefits at the working families' expense.
9 Therefore, in order to ensure that the state's resources are achieving
10 their desired effect of raising living standards for the state's working
11 families, the legislature finds that it is necessary to collect and
12 analyze additional information and to enact certain safeguards in its
13 provision of state assistance. In order to promote corporate account-
14 ability and responsibility to the citizens of this state, the legisla-
15 ture adopts the following principles:
16 Principle 1. Businesses that receive economic assistance on the basis
17 of promises to create and retain jobs in this state shall deliver on
18 those promises.
19 Principle 2. Businesses that receive economic assistance and then fail
20 to live up to their promises to create and retain jobs shall refund
21 their assistance to the taxpayers.
EXPLANATION--Matter in italics (underscored) is new; matter in brackets
[] is old law to be omitted.
LBD09454-02-3
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1 Principle 3. Recipients of economic assistance and the granting agen-
2 cies shall report on their progress in meeting their job creation and
3 job retention promises.
4 Principle 4. No economic assistance shall be provided for the creation
5 of jobs that do not pay living wage.
6 § 3. The business corporation law is amended by adding a new article
7 18 to read as follows:
8 ARTICLE 18
9 CORPORATE DISCLOSURE, RESPONSIBILITY, AND TAXPAYER
10 PROTECTION ACT
11 Section 1814. Definitions.
12 1815. Disclosure of real property tax reductions and abatements.
13 1816. Standardized applications for development assistance.
14 1817. Disclosure of development assistance.
15 1818. Job creation and job quality standards.
16 1819. Recapture.
17 § 1814. Definitions.
18 For the purposes of this article, the following terms shall have the
19 following meanings:
20 1. "Corporate parent" shall mean any person, limited liability compa-
21 ny, organization, business, partnership, group or corporate entity
22 recognized by law, or any combination thereof, that possesses, owns or
23 controls an interest greater than fifty percent of a recipient corpo-
24 ration.
25 2. "Date of assistance" shall mean the date upon which a granting body
26 transmits the first dollar value of development assistance to a recipi-
27 ent corporation.
28 3. "Development assistance" (a) shall mean any form of public assist-
29 ance, including tax expenditures, made for the purpose of stimulating
30 economic development of a corporation, industry, geographic jurisdiction
31 or any other sector of the state's economy, including but not limited to
32 industrial development bonds, training grants, loans, loan guarantees,
33 enterprise zones, empowerment zones, tax increment financing, fee waiv-
34 ers, land price subsidies, infrastructure whose principal beneficiary is
35 a single business or defined group of businesses at the time it is built
36 or improved, matching funds, tax abatements, tax credits and tax
37 discounts of every kind, including corporate income, personal income,
38 sales and compensating use, raw materials, real property, job creation,
39 industrial investment, excise, utility, inventory, accelerated depreci-
40 ation and research and development tax credits and discounts.
41 (b) Such term shall not include:
42 (i) assistance generally available to all businesses or to a general
43 class of similar businesses, such as a line of business, size, location
44 or similar general criteria;
45 (ii) redevelopment property polluted as defined in the environmental
46 conservation law or pursuant to federal law, rules or regulations;
47 (iii) assistance provided for the sole purpose of renovating old or
48 decaying building stock or bringing such stock into compliance with the
49 relevant building and fire codes, and assistance provided for designated
50 historic preservation districts, provided that such assistance is equal
51 to or less than fifty percent of the total cost;
52 (iv) assistance for housing;
53 (v) assistance for pollution control or abatement;
54 (vi) assistance for energy conservation;
55 (vii) tax reductions resulting from conformity with federal tax law;
56 (viii) workers compensation and unemployment compensation;
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1 (ix) benefits derived from regulation;
2 (x) assistance for a collaboration between an institution of higher
3 education within the state and a business;
4 (xi) general changes in tax increment financing law and other general
5 tax law changes of a principally technical nature;
6 (xii) federal assistance until such assistance has been repaid to and
7 reinvested by the state or a municipal agency; and
8 (xiii) federal loan funds provided through the United States depart-
9 ment of commerce, economic development administration.
10 4. "Full-time job" shall mean a job in which a new employee works for
11 a recipient corporation at a rate of at least thirty-five hours per
12 week.
13 5. "Granting body" shall mean any public entity within the state,
14 including municipalities, regional development organizations, state and
15 local public corporations, and any state agency which provides develop-
16 ment assistance. Such term shall also include any not-for-profit entity
17 created by a municipal agency, or any other entity created by or author-
18 ized by a municipality with authority to provide development assistance.
19 6. "In effect" shall mean and refer to any calendar year within the
20 duration of development assistance, including but not limited to the
21 duration of any loan, loan guarantee, tax credit, tax credit carry
22 forward, real property tax reduction or abatement, or tax increment
23 financing. For one-time forms of development assistance such as grants
24 and land price subsidies, such term shall refer to a period of not less
25 than five years from the date of assistance.
26 7. "Part-time job" shall mean a job in which a new employee works for
27 a recipient corporation at a rate of less than thirty-five hours per
28 week.
29 8. "Property taxing entity" shall mean every municipal corporation, as
30 defined in the real property tax law, which levies taxes or assessments
31 upon real property pursuant to the real property tax law.
32 9. "Office" shall mean the office of real property services.
33 10. "Recipient corporation" shall mean any for-profit or not-for-pro-
34 fit corporation that receives development assistance.
35 11. "Small business" shall mean a corporation having a corporate
36 parent, and all subsidiaries thereof, employing fewer than an average of
37 twenty full-time equivalent employees or which has gross receipts of
38 less than one million dollars in all United States jurisdictions during
39 the calendar year for which disclosure is required.
40 12. "Specific project site" shall mean that distinct operational unit
41 to which any development assistance is applied.
42 13. "Temporary job" shall mean a job in which a new employee is hired
43 for a specific duration of time or season.
44 14. "Internet" shall mean the world wide web, or similar proprietary
45 of common carrier electronic systems.
46 15. "Department" shall mean the department of taxation and finance.
47 16. "Commissioner" shall mean the commissioner of the department of
48 taxation and finance.
49 § 1815. Disclosure of real property tax reductions and abatements.
50 1. The office shall establish and distribute a standardized disclosure
51 form for use by all property taxing entities. Forms shall be published
52 on the department's internet homepage. Such form shall include, but not
53 be limited to:
54 (a) the name of the recipient corporation;
55 (b) the address and description of the real property owned by the
56 recipient corporation;
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1 (c) the date upon which any individual real property tax reduction or
2 abatement first took effect;
3 (d) the date upon which any individual property tax reduction or
4 abatement is scheduled to expire;
5 (e) the rate or schedule of each individual real property tax
6 reduction or abatement for the period between the date it took effect
7 and the date it is scheduled to expire;
8 (f) the recipient corporation's aggregate foregone revenue for the
9 calendar year as a result of each real property tax reduction or abate-
10 ment;
11 (g) a compilation and summary of the recipient corporation's total
12 foregone revenue as a result of all real property tax reductions or
13 abatements, including a summary of foregone revenue for each kind of
14 reduction or abatement; and
15 (h) the respective shares of the recipient corporation's real property
16 tax revenues in the reported year which went to each property taxing
17 entity.
18 2. Annually, on or before the first day of February, every property
19 taxing entity shall complete the form established pursuant to paragraph
20 one of this section for each recipient corporation owning real property
21 or doing business within the jurisdiction of such entity.
22 3. Annually, on or before the first day of April, every property
23 taxing entity shall compile and report to the office all information
24 included in the forms completed pursuant to paragraph two of this
25 section.
26 4. The office shall annually, on or before the first day of June,
27 compile all data received from property taxing entities pursuant to this
28 section and publish, in both written and electronic forms, such data in
29 the form of a disclosure registry. All data shall additionally be
30 published on the internet homepage of the office.
31 5. Upon the failure of any property taxing entity to comply with the
32 provisions of paragraph three of this section, the office shall, within
33 ten business days of the first day of April, notify the department of
34 such failure. Upon receipt of such notice, the department shall
35 suspend, within three business days, all development assistance under
36 its control to such property taxing entity, and shall be prohibited from
37 providing any development assistance to such entity until the department
38 receives notice from the office that the property taxing entity is in
39 compliance with paragraph three of this section.
40 6. Upon the failure of the office, the department or any state agency
41 to comply with the provisions of paragraph four or five of this section,
42 any taxpayer, who paid taxes during the previous calendar year, shall
43 have standing to bring a cause of action to compel compliance with the
44 provisions of this section.
45 7. All information derived pursuant to this section shall be made
46 available to the public pursuant to article six of the public officers
47 law.
48 8. Property taxing entities who fail to comply with this section three
49 times will be prohibited from receiving any further development assist-
50 ance.
51 § 1816. Standardized applications for development assistance.
52 1. The department shall establish and distribute a standardized appli-
53 cation form for development assistance to be used by all granting
54 bodies. Upon approval of any application, the recipient and granting
55 body shall be bound by the terms and information included in such appli-
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1 cation. Such application form shall include, but shall not be limited
2 to:
3 (a) an application tracking number which is specific to both the
4 granting agency and to each application;
5 (b) the name, street, mailing addresses, phone number and chief offi-
6 cer of the granting body;
7 (c) the name, street, mailing addresses, phone number and chief offi-
8 cer of the corporate parent of the applicant corporation;
9 (d) the name, street, mailing addresses, phone number, four-digit SIC
10 number and chief officer of the applicant corporation at the specific
11 project site for which development assistance is sought;
12 (e) a statement of the public purpose for the development assistance,
13 including but not limited to, enhancing economic diversity, creating
14 high-quality job growth, job retention, stabilizing the community,
15 increasing the tax base or other public purpose;
16 (f) a statement of the applicant's record of performance in contribut-
17 ing to job retention and creation, economic stability and community
18 revitalization, child care, and any criminal convictions, violations or
19 pending investigations regarding occupational safety and health stand-
20 ards, equal employment opportunity credits and environmental standards;
21 (g) a statement of why the development assistance is needed;
22 (h) a commitment to continue operations in the jurisdiction where the
23 development assistance is used for not less than five years after the
24 date of assistance;
25 (i) the applicant corporation's total number of employees at the
26 specific project site on the date of the application, broken down by
27 full-time, part-time and temporary employment;
28 (j) the total number of employees in the state of the applicant corpo-
29 ration's corporate parent, and all subsidiaries thereof, as of December
30 thirty-first of the year preceding the date of application, broken down
31 by full-time, part-time and temporary employment;
32 (k) the kind or kinds of development assistance and value or values of
33 assistance being applied for;
34 (l) the number of new jobs to be created by the development assist-
35 ance, broken down by full-time, part-time and temporary employment;
36 (m) a specific minimum level of wages to be paid for the jobs created.
37 Such minimum level may be stated as a specific dollar amount or may be
38 stated as a formula that will generate a specific dollar amount;
39 (n) the average hourly wage to be paid within one year of the hiring
40 to the new employees, broken down by number of full-time, part-time and
41 temporary employees, and broken down by wage levels as follows:
42 (i) $7.15 an hour,
43 (ii) $7.16 to $8.00 an hour,
44 (iii) $8.01 to $9.00 an hour,
45 (iv) $9.01 to $10.00 an hour,
46 (v) $10.01 to $11.00 an hour,
47 (vi) $11.01 to $12.00 an hour,
48 (vii) $12.01 to $13.00 an hour,
49 (viii) $13.01 to $14.00 an hour,
50 (ix) $14.01 to $15.00 an hour, and
51 (x) $15.01 or more an hour;
52 (o) for applicant project sites located in a metropolitan statistical
53 area, as defined by the United States census bureau, the average hourly
54 wage paid non-managerial employees in the applicant's industry in the
55 state, as most recently provided by the United States bureau of labor
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1 statistics to the two or three-digit SIC number specification, as avail-
2 able;
3 (p) for applicant project sites located outside of metropolitan
4 statistical areas, the average weekly wage paid in the county, as most
5 recently reported by the United States department of commerce in its
6 county business patterns reports;
7 (q) the nature of employer-paid health care coverage to be provided
8 within ninety days of the hiring to the employees filling the new jobs,
9 including any costs to be borne by the new employees;
10 (r) a list of all other forms of development assistance the applicant
11 corporation is seeking for the specific project site, and the name or
12 names of the granting body or bodies from which such development assist-
13 ance is being sought;
14 (s) a narrative, if necessary, describing how the applicant's use of
15 the development assistance may reduce employment at any site in any
16 United States jurisdiction controlled by the applicant corporation or
17 its corporate parent, including but not limited to events such as auto-
18 mation, consolidation, merger, acquisition, product line movement, busi-
19 ness activity movement or restructuring by either the applicant corpo-
20 ration or its corporate parent; and
21 (t) individual certifications by the chief officers of both the appli-
22 cant corporation and the granting body as to the accuracy of the appli-
23 cation, under the penalty of perjury.
24 2. On and after the first day of April, two thousand fourteen, every
25 granting body and applicant corporation shall jointly complete a stand-
26 ardized application form each time development assistance is applied
27 for. Provided, that prior to the awarding of development assistance in
28 excess of five hundred thousand dollars by a granting body which is
29 established by the state or in excess of one hundred thousand dollars by
30 a municipal granting body, such granting body shall hold a public hear-
31 ing on such application and shall provide public notice of such public
32 hearing.
33 (a) Public notice shall be given in a manner designed to inform inter-
34 ested and potentially interested persons of the location, character and
35 amount of the proposed development assistance by the granting body. Such
36 notice shall be given by the granting body. The granting body shall:
37 (i) publish notice in a newspaper of general circulation in the
38 geographical area of the proposed development assistance, such newspaper
39 to be specified by the department;
40 (ii) post notice in the post office and public places of the munici-
41 pality nearest the premises of the applicant in which the effluent
42 source is located;
43 (iii) post notice near the entrance to the granting body's premises
44 and in nearby places;
45 (iv) mail, by the department, to any person or group upon request, and
46 the department shall upon request add the name of any person or group to
47 a mailing list to receive copies of notices for all economic development
48 issues within the state or within a certain geographical area; and
49 (v) post notice on the internet homepage of the department as well as
50 the granting body.
51 (b) All costs of public notices shall be borne by the granting body
52 and proof thereof shall be given to the department by the applicant in
53 the form specified by the department.
54 (c) The notice shall be in the form and contain the information speci-
55 fied by the department, as more specifically denoted in subparagraph (d)
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1 of this paragraph, and shall be published at the times and for the
2 number of days specified by the department.
3 (d) The contents of public notice shall include at least the follow-
4 ing:
5 (i) date of application and end of public comment period; the public
6 comment period shall be specified by the department, but in no event
7 shall be less than thirty days from the date of publication;
8 (ii) name, address and telephone number of the relevant offices of the
9 department at which interested persons may obtain further information,
10 request a copy of the application and inspect and copy the application
11 and its supporting documents;
12 (iii) name and address of applicant or applicants;
13 (iv) a brief description of the procedures for public comment and
14 hearing request applicable pursuant to this section.
15 (e) Within the public comment period specified in the public notice,
16 interested persons may submit their written views with respect to the
17 application. All written comments submitted during the comment period
18 shall be retained by the commissioner and considered in the formulation
19 of his final determination with respect to the application. The period
20 for written comment may be extended at the discretion of the commission-
21 er. A request or petition for a public hearing pursuant to this para-
22 graph shall be made within this public comment period.
23 (f) The following information will be available to the public for
24 inspection and copying:
25 (i) any application;
26 (ii) any public comments and testimony concerning an application with
27 regard to that application; and
28 (iii) any information obtained pursuant to any monitoring, records,
29 reporting or investigatory activities of the department.
30 (g) The applicant, any person or group of persons, any affected state,
31 or agency or political subdivision thereof, any affected interstate
32 agency, any affected country, or province, or agency, or political
33 subdivision thereof, may petition in writing for additional public hear-
34 ings with respect to any application. Any such request or petition shall
35 be filed within the period prescribed in subparagraph (h) of this para-
36 graph and shall indicate the interest of the person filing such request
37 and the reasons why a hearing is warranted. The following costs of the
38 hearing on an application shall be paid directly by the granting body to
39 the provider of such services, material, or facilities:
40 (i) stenographic and other costs of producing the record;
41 (ii) newspaper publication and other costs of giving notice; and
42 (iii) costs of renting any necessary facilities and equipment for
43 holding the hearing.
44 (h) Notice shall be given at least thirty days in advance of the hear-
45 ing. The contents of such public notice shall include at least the
46 following:
47 (i) date of issuance of notice and date, time, location, and purpose
48 of hearing;
49 (ii) name, address and telephone number of the relevant offices of the
50 department at which interested persons may obtain further information,
51 and request a copy of the permit;
52 (iii) name and address of the applicant or applicants whose applica-
53 tion will be considered at the hearing;
54 (iv) a concise statement of the issues raised by the persons request-
55 ing the hearing; and
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1 (v) a brief description of the nature of the hearing, including the
2 rules and procedures to be followed.
3 (i) At a public hearing held with regard to an application, any person
4 shall be afforded the opportunity to present oral or written statements,
5 arguments or data; provided, however, that the department shall have the
6 discretion to fix reasonable time limits on the presentation of oral
7 statements and when time and scheduling considerations necessitate, may
8 require the submission of statements in writing. (i) The hearing shall
9 be conducted by a hearing officer designated by the commissioner. The
10 hearing officer shall cause a record of the hearing to be made, which
11 shall include any public comments or statements received, and shall
12 render a report to the commissioner setting forth the appearances and
13 relevant facts and arguments presented at the hearing. The hearing offi-
14 cer is empowered to:
15 (1) provide for the taking of written and oral statements, testimony
16 under oath, and documentary evidence; and
17 (2) regulate the course of the hearing, fix the time for the filing of
18 written statements and data, provide for the scheduling and preservation
19 of oral statements, testimony under oath and documentary evidence, and
20 set the time and place for continued hearings.
21 (ii) Any materials, including records and documents, in the possession
22 of the department of which it desires to avail itself, may be offered by
23 the department and made part of the record. Such materials may be relied
24 upon by the commissioner in making a final decision or other disposi-
25 tion.
26 (iii) Cross-examination of witnesses shall be permitted and the strict
27 procedural rules of evidence may be modified at the discretion of the
28 hearing officer. The determination of the hearing officer shall be
29 founded upon the record of the hearing and upon competent, relevant,
30 material evidence which is substantial in view of the entire record.
31 § 1817. Disclosure of development assistance.
32 1. On or before the first day of February each year, every granting
33 body shall submit to the department a copy of every development assist-
34 ance application form completed pursuant to section 1816 (Standardized
35 applications for development assistance) during the previous calendar
36 year. Upon each such application, the granting body shall designate
37 whether the development assistance is pending, was approved or was
38 denied, and for those applications that were approved, the date of
39 assistance if the date of assistance occurred in the previous calendar
40 year.
41 2. For those applications that were approved but for which the date of
42 assistance did not occur in the same calendar year, each granting body
43 shall report in its next subsequent annual report to the department the
44 relevant dates of assistance.
45 3. Each recipient corporation shall submit an annual progress report
46 to the development assistance grantor. For each development assistance
47 application that was approved, each granting agency shall submit to the
48 department the recipient corporation's progress report which shall
49 include, but not be limited to, the following data:
50 (a) the application tracking number;
51 (b) the name, street, mailing address, phone number and chief officer
52 of the granting body;
53 (c) the name, street, mailing address, phone number, four-digit SIC
54 number and chief officer of the corporation at the specific project site
55 for which the development assistance was approved;
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1 (d) the kind of development assistance and value of assistance that
2 was approved;
3 (e) the applicant's total level of employment at the specific project
4 site on the date of the application and the applicant's total level of
5 employment at the specific project site on the date of the report,
6 broken down by full-time, part-time and temporary employment, and a
7 computation of the gain or loss in each category;
8 (f) the number of new jobs the applicant corporation stated in its
9 application would be created by the development assistance, broken down
10 by full-time, part-time and temporary employment;
11 (g) the total level of employment in the state of the applicant's
12 corporate parent, and all subsidiaries thereof, as of the thirty-first
13 day of December of the year preceding the date of application and the
14 total level of employment in the state of the applicant's corporate
15 parent, and all subsidiaries thereof, as of the thirty-first day of
16 December of each year up through the reporting year, broken down by
17 full-time, part-time and temporary employment, and a statement of the
18 gain or loss in each category from the earliest reported year to the
19 most recent;
20 (h) the average hourly wage paid as of December thirty-first of the
21 reporting year to employees filling the new jobs at the specific project
22 site, broken down by full-time, part-time and temporary employment;
23 (i) the nature of employer-paid health care coverage being provided
24 within ninety days of the hiring to the employees filling the new jobs,
25 including any costs being borne by the new employees;
26 (j) a narrative, if necessary, describing how the recipient corpo-
27 ration's use of the development assistance during the reporting year has
28 reduced employment at any site in any United States jurisdiction
29 controlled by the applicant or its corporate parent, including but not
30 limited to events such as automation, consolidation, merger, acquisi-
31 tion, product line movement, business activity movement, or restructur-
32 ing by either the applicant or its corporate parent; and
33 (k) signed individual certifications by the chief officers of both the
34 applicant corporation and the granting body as to the accuracy of the
35 progress report, under the penalty of perjury.
36 4. The granting body and the department shall have full investigative
37 authority to verify all applicants' progress report data, including but
38 not limited to inspection of the specific project site and analysis of
39 tax and payroll records.
40 5. Annually, on or before the first day of June, the department shall
41 compile, summarize and publish all data in all of the development
42 assistance progress reports in both written and electronic forms. Forms
43 shall be published on the department's internet homepage. Among the
44 information in the compilation and summary report, the department shall
45 include:
46 (a) the total amount of development assistance awarded in each devel-
47 opment region of the state;
48 (b) the distribution of development assistance amounts by size of the
49 business subsidy;
50 (c) the distribution of development assistance amounts by time catego-
51 ry;
52 (d) the distribution of development assistance by type and by public
53 purpose;
54 (e) the percentage of all development assistance recipients that
55 reached their goals;
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1 (f) the percentage of development assistance recipients that did not
2 reach their goals within two years of the benefit date;
3 (g) the total dollar amount of development assistance to recipients
4 that did not meet their goals after two years of the benefit date;
5 (h) the percentage of development assistance recipients that did not
6 meet their goals and that did not receive repayment;
7 (i) the list of recipients that have failed to meet the terms of a
8 subsidy agreement in the past five years and have not satisfied their
9 repayment obligations;
10 (j) the number of part-time and full-time jobs within separate levels
11 of wages; and
12 (k) the benefits paid within separate levels of wages.
13 6. Every aspect of development assistance applications, progress
14 reports and the department compilation of applications and progress
15 reports shall be fully subject to the provisions of article six of the
16 public officers law.
17 7. If a granting body fails to comply with paragraph one, two or three
18 of this section, or if a recipient corporation fails to comply with
19 subparagraph (k) of paragraph three of this section, the department
20 shall, within ten business days of the filing deadline pursuant to para-
21 graph one of this section, suspend any development assistance activities
22 under its control in the granting body's jurisdiction, and shall be
23 prohibited from proceeding with any development assistance activities
24 under its control in the granting body's jurisdiction, unless and until
25 it receives proof that the negligent granting body or recipient corpo-
26 ration has complied with such provisions.
27 § 1818. Job creation and job quality standards.
28 1. In considering development assistance applications, every granting
29 body shall perform the following two analyses concerning the projected
30 wages and benefits:
31 (a) compare the aggregate projected wage, as specified under subpara-
32 graph (n) of paragraph one of section 1816 (Standardized applications
33 for development assistance), with existing wages, as specified and
34 defined under subparagraphs (o) and (p) of such paragraph. To derive the
35 aggregate projected wage, the granting body shall compute the weighted
36 hourly average wage for all new employees, including full-time, part-
37 time and temporary employees. If the aggregate projected wage is less
38 than eighty-five percent of existing wages, the application shall be
39 denied. For small businesses, if the aggregate projected wage is less
40 than seventy-five percent of existing wages, the application shall be
41 denied;
42 (b) perform a second wage computation to consider the value of health-
43 care coverage provided to full-time employees, as specified in subpara-
44 graph (q) of paragraph one of section 1816 (Standardized applications
45 for development assistance). If the applicant corporation is not
46 providing health care coverage to full-time employees, the granting body
47 shall subtract one dollar and fifty cents an hour from the aggregate
48 projected wage. If the recipient corporation projects some health care
49 costs to be borne by the new full-time employees, the granting body
50 shall, based on data from the applicant corporation, estimate the hourly
51 cost to the new full-time employee of such costs and subtract that
52 amount from the aggregate projected wage. If the amount resulting from
53 such subtraction is less than eighty percent of existing wages as speci-
54 fied and defined under subparagraphs (o) and (p) of paragraph one of
55 section 1816 (Standardized applications for development assistance), the
56 application shall be denied. For small businesses, if the amount result-
A. 6253 11
1 ing from such subtraction is less than seventy percent of existing
2 wages, the application shall be denied.
3 2. Granting bodies shall perform a third eligibility analysis. In
4 considering development assistance applications, all granting bodies
5 shall divide the value of assistance specified in subparagraph (k) of
6 paragraph one of section 1816 (Standardized applications for development
7 assistance), by the number of projected full-time jobs, as provided in
8 subparagraph (l) of paragraph one of section 1816 (Standardized applica-
9 tions for development assistance). If the resulting sum exceeds thir-
10 ty-five thousand dollars, the application shall be denied.
11 3. The provisions of paragraph one of this section may be waived in a
12 bona fide collective bargaining agreement that covers employees at the
13 specific project site of the applicant corporation, but only if such
14 waiver is explicitly set forth in such collective bargaining agreement
15 in clear and unambiguous terms. Unilateral implementation of terms and
16 conditions of employment by either party to a collective bargaining
17 agreement shall not constitute nor be permitted as a waiver of para-
18 graphs one and two of this section.
19 § 1819. Recapture.
20 1. Recipient corporations shall achieve their job creation, and wage
21 and benefit goals within two years of the date of assistance. Such
22 corporations shall also maintain their wage and benefit goals as long as
23 the benefit is in effect. Corporate parents of recipient corporations
24 maintain at least ninety percent of their original state employment, as
25 specified in subparagraph (i) of paragraph one of section 1816 (Stand-
26 ardized applications for development assistance) and subparagraph (g) of
27 paragraph three of section 1817 (Disclosure of development assistance).
28 2. Granting bodies shall, within ten business days after the second
29 anniversary of the date of assistance, fill out a standardized progress
30 report and the recipient corporation shall sign it and certify its accu-
31 racy under the penalty of perjury. This second anniversary progress
32 report shall be filed by the granting body with the department along
33 with the granting body's next annual filing of progress reports.
34 Progress reports shall be published on the department's internet home-
35 page.
36 3. The granting body shall indicate on this second anniversary
37 progress report whether the recipient corporation has achieved its job
38 creation and wage and benefit goals, and whether the corporate parent
39 has maintained ninety percent of its state employment.
40 4. On all subsequent annual progress reports, the granting body shall
41 indicate whether or not the recipient corporation is still in compliance
42 with its job creation, and wage and benefit goals, and whether the
43 corporate parent is still in compliance with its state employment main-
44 tenance requirement.
45 5. If upon the occasion any progress report, beginning with the second
46 anniversary progress report, a granting body finds that a recipient
47 corporation has not achieved its job creation, or wage or benefit goals,
48 or the corporate parent has not maintained ninety percent of its state
49 employment, the granting body shall, within ten business days, file a
50 finding of development assistance default with the department and with
51 the recipient corporation.
52 6. If a recipient corporation defaults on development assistance,
53 pursuant to paragraph five of this section, it shall pay back to the
54 granting body that fraction of the development assistance that accrued
55 to its benefit for the calendar year in which the default occurred, plus
56 interest at a rate determined by the granting agency. For one-time forms
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1 of development assistance such as grants or land price discounts, a
2 defaulting recipient corporation shall pay back to the granting body
3 one-fifth of the value of assistance. Remittance of the payback by a
4 recipient corporation to a granting body shall take place within sixty
5 calendar days of the delivery of the default notice to the recipient
6 corporation.
7 7. If a recipient corporation defaults on development assistance,
8 pursuant to paragraph five of this section, in three consecutive calen-
9 dar years, the granting body shall declare the development assistance
10 null and void, and shall so notify the department and the recipient
11 corporation. Upon such declaration, the recipient corporation shall pay
12 back to the granting body all remaining value of the development assist-
13 ance it has not already paid back. Remittance of the null and void
14 payback by a recipient corporation to a granting body shall take place
15 within one hundred eighty calendar days of the delivery of such notice
16 to the recipient corporation. A recipient corporation that fails to
17 meet the terms of a development assistance agreement shall not receive
18 development assistance from any granting body for a period of five years
19 from the date of failure or until the recipient corporation satisfies
20 its repayment obligation pursuant to this paragraph, whichever occurs
21 first.
22 8. A granting body shall require as a condition of any development
23 assistance to a recipient corporation that:
24 (a) such recipient corporation shall not relocate outside the state
25 during the term of such development assistance or for a period of ten
26 years after the award of such assistance, whichever is later, unless the
27 full amount of such assistance is repaid to the granting body and a
28 penalty equal to five percent of the total assistance received is paid
29 to the granting body; and
30 (b) if the recipient corporation relocates within the state during the
31 term of such development assistance in the case of a loan or loan guar-
32 antee or within two years of receiving an award, grant or other assist-
33 ance, such corporation shall offer employment at the new location to its
34 employees from the original location if such employment is available.
35 9. Upon a finding that a recipient corporation has relocated outside
36 of the state within two years of receiving development assistance, such
37 corporation shall be deemed ineligible to receive any additional devel-
38 opment assistance.
39 10. A waiver of the provisions of paragraph eight or nine of this
40 section may be granted to a recipient corporation upon a determination
41 of legitimate hardship. A legitimate hardship pursuant to this para-
42 graph shall be a circumstance under which a recipient corporation is
43 compelled to relocate due to unforeseen circumstances beyond the direct
44 or indirect control of such recipient corporation.
45 11. Every aspect of all development assistance default notices, recap-
46 ture remittances, associated correspondence and related proceedings
47 shall be fully subject to the provisions of article six of the public
48 officers law.
49 12. If a granting body fails to enforce the provisions of this arti-
50 cle, any taxpayer who paid taxes in the calendar year prior to the year
51 in dispute, or any organization representing such taxpayers, shall be
52 entitled to bring a cause of action to compel enforcement of this arti-
53 cle. The court shall award to any prevailing plaintiff reasonable
54 attorney's fees and actual incurred costs in pursuing such action.
55 § 4. If any item, clause, sentence, subparagraph, subdivision,
56 section, or any other part of this act, or the application thereof to
A. 6253 13
1 any person or circumstances, is held to be invalid, such holding shall
2 not affect, impair, or invalidate the remainder of this act, of the
3 application of such section or part of a section held invalid, to any
4 other person or circumstances, but shall be confined in its operation to
5 the item, clause, sentence, subparagraph, subdivision, section, or other
6 part of this act directly involved in such holding, or to the person and
7 circumstances therein involved.
8 § 5. This act shall take effect on the first of January next succeed-
9 ing the date on which it shall have become a law.
