Rpld S859 sub 3, amd Gen Muni L, generally; amd Pub Auth L, generally; add S206, amd S1411, N-PC L
Relates to the purposes and powers of industrial development agencies and to improving the accountability and transparency of such agencies; makes conforming changes to general municipal law; extends the bond issuance charge to the debt issued by not-for-profit corporations acting on behalf of the state or its political subdivisions; and relates to the purposes and powers of local development corporations and certain other not-for-profit corporations thereof.
STATE OF NEW YORK
________________________________________________________________________
9773
IN ASSEMBLY
May 22, 2014
___________
Introduced by M. of A. MAGNARELLI, BRENNAN, RYAN -- read once and
referred to the Committee on Local Governments
AN ACT to amend the general municipal law and the public authorities
law, in relation to the purposes and powers of industrial development
agencies and to improve the accountability and transparency of such
agencies; to amend the public authorities law, in relation to extend-
ing the bond issuance charge to the debt issued by not-for-profit
corporations acting on behalf of the state or its political subdivi-
sions; to amend the not-for-profit corporation law, in relation to the
purposes and powers of local development corporations and certain
other not-for-profit corporations thereof; and to repeal subdivision 3
of section 859 of the general municipal law relating to an evaluation
of the activities of industrial development agencies and authorities
in the state prepared by an entity independent of the department
The People of the State of New York, represented in Senate and Assem-bly, do enact as follows:
1 Section 1. Subdivision 14 of section 854 of the general municipal law,
2 as added by chapter 356 of the laws of 1993, is amended and a new subdi-
3 vision 21 is added to read as follows:
4 (14) "Financial assistance" - shall mean the proceeds of bonds issued
5 by an agency, straight-leases, grants, loans, or exemptions from taxa-
6 tion claimed by a project occupant as a result of an agency taking
7 title, possession or control (by lease, license or otherwise) to the
8 property or equipment of such project occupant or of such project occu-
9 pant acting as an agent of an agency.
10 (21) "Civic facility" shall mean a facility to be owned or occupied by
11 a municipal corporation, a district corporation, or a not-for-profit
12 corporation organized and existing under the laws of this state or
13 authorized to conduct activities in this state; provided that such
14 facilities shall be limited to medical facilities including those
15 defined in article twenty-eight of the public health law, educational
16 facilities, recreational facilities for public use, facilities used for
17 municipal government or public safety purposes, or housing facilities
18 primarily designed to be occupied by individuals sixty years of age or
EXPLANATION--Matter in italics (underscored) is new; matter in brackets
[] is old law to be omitted.
LBD15295-01-4
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1 older. Nothing in this article shall be deemed to waive any applicable
2 requirement for an operating facility certificate, consent or other
3 approval as provided by law.
4 § 2. Subdivision 2 of section 856 of the general municipal law, as
5 amended by chapter 356 of the laws of 1993, is amended to read as
6 follows:
7 2. An agency shall be a corporate governmental agency, constituting a
8 public benefit corporation. Except as otherwise provided by special act
9 of the legislature, an agency shall consist of not less than [three]
10 five nor more than seven members who shall be appointed by the governing
11 body of each municipality and who shall serve at the pleasure of the
12 appointing authority. Such members may include representatives of local
13 government, school boards, organized labor and business. A member shall
14 continue to hold office until his successor is appointed and has quali-
15 fied. The governing body of each municipality shall designate the first
16 chairman and file with the secretary of state a certificate of appoint-
17 ment or reappointment of any member. Such members shall receive no
18 compensation for their services but shall be entitled to the necessary
19 expenses, including traveling expenses, incurred in the discharge of
20 their duties.
21 § 3. Section 858 of the general municipal law, as added by chapter
22 1030 of the laws of 1969, the opening paragraph as amended by chapter
23 478 of the laws of 2011, subdivision 4 as amended by chapter 747 of the
24 laws of 2005, subdivision 9 as amended by chapter 444 of the laws of
25 1997 and subdivision 8 as amended, subdivision 15 as added and subdivi-
26 sions 16 and 17 as renumbered by chapter 356 of the laws of 1993, is
27 amended to read as follows:
28 § 858. Purposes and powers of the agency. The purposes of the agency
29 shall be to promote, develop, encourage and assist in the acquiring,
30 constructing, reconstructing, improving, maintaining, equipping and
31 furnishing industrial, manufacturing, warehousing, commercial, research
32 and recreation facilities including industrial pollution control facili-
33 ties, educational or cultural facilities, civic facilities, railroad
34 facilities, horse racing facilities, automobile racing facilities and
35 continuing care retirement communities, provided, however, that, of
36 agencies governed by this article, only agencies created for the benefit
37 of a county and the agency created for the benefit of the city of New
38 York shall be authorized to provide financial assistance in any respect
39 to a continuing care retirement community, and thereby advance the job
40 opportunities, health, general prosperity and economic welfare of the
41 people of the state of New York and to improve their recreation opportu-
42 nities, prosperity and standard of living; and to carry out the afore-
43 said purposes, each agency shall have the following powers:
44 (1) To sue and be sued;
45 (2) To have a seal and alter the same at pleasure;
46 (3) To acquire, hold and dispose of personal property for its corpo-
47 rate purposes;
48 (4) To acquire by purchase, grant, lease, gift, pursuant to the
49 provisions of the eminent domain procedure law, or otherwise and to use,
50 real property or rights or easements therein necessary for its corporate
51 purposes in compliance with the local zoning and planning regulations
52 and shall take into consideration regional and local comprehensive land
53 use plans and state designated heritage area management plans, and to
54 sell, convey, mortgage, lease, pledge, exchange or otherwise dispose of
55 any such property in such manner as the agency shall determine. In the
56 case of railroad facilities, however, the phrase to use real property or
A. 9773 3
1 rights or easements therein shall not be interpreted to include opera-
2 tion by the agency of rail service upon or in conjunction with such
3 facilities.
4 (5) To acquire real property from a municipality as necessary for its
5 corporate purposes pursuant to section eight hundred fifty-eight-c of
6 this title.
7 (6) To make by-laws for the management and regulation of its affairs
8 and, subject to agreements with its bondholders, for the regulation of
9 the use of a project or projects.
10 [(6)] (7) With the consent of the municipality, to use agents, employ-
11 ees and facilities of the municipality, paying the municipality its
12 agreed proportion of the compensation or costs;
13 [(7)] (8) To appoint officers, agents and employees, to prescribe
14 their qualifications and to fix their compensation and to pay the same
15 out of funds of the agency;
16 [(8)] (9) (a) To appoint an attorney, who may be the counsel of the
17 municipality, and to fix the attorney's compensation for services which
18 shall be payable to the attorney, and to retain and employ private
19 consultants for professional and technical assistance and advice;
20 (b) An attorney acting as bond counsel for a project must file with
21 the agency a written statement in which the attorney identifies each
22 party to the transaction which such attorney represents. If bond counsel
23 provides any legal services to parties other than the agency the written
24 statement must describe the nature of legal services provided by such
25 bond counsel to all parties to the transaction, including the nature of
26 the services provided to the agency.
27 [(9)] (10) To make contracts and leases, and to execute all instru-
28 ments necessary or convenient to or with any person, firm, partnership
29 or corporation, either public or private; provided, however, that any
30 extension of an existing contract, lease or other agreement entered into
31 by an agency with respect to a project shall be guided by the provisions
32 of this article;
33 [(10)] (11) To acquire, construct, reconstruct, lease, improve, main-
34 tain, equip or furnish one or more projects;
35 [(11)] (12) To accept gifts, grants, loans, or contributions from, and
36 enter into contracts or other transactions with, the United States and
37 the state or any agency of either of them, any municipality, any public
38 or private corporation or any other legal entity, and to use any such
39 gifts, grants, loans or contributions for any of its corporate purposes;
40 (13) To provide financial assistance in the form of loans to improve,
41 maintain or equip one or more projects consistent with its corporate
42 purposes.
43 (14) To provide financial assistance in the form of grants for one or
44 more projects consistent with its corporate purposes.
45 [(12)] (15) To borrow money and to issue bonds and to provide for the
46 rights of the holders thereof;
47 [(13)] (16) To grant options to renew any lease with respect to any
48 project or projects and to grant options to buy any project at such
49 price as the agency may deem desirable;
50 [(14)] (17) To designate the depositories of its money either within
51 or without the state;
52 [(15)] (18) To enter into agreements requiring payments in lieu of
53 taxes. Such agreements shall be in writing and in addition to other
54 terms shall contain: the amount due annually to each affected tax juris-
55 diction (or a formula by which the amount due can be calculated), the
56 name and address of the person, office or agency to which payment shall
A. 9773 4
1 be delivered, the date on which payment shall be made, and the date on
2 which payment shall be considered delinquent if not paid. Unless other-
3 wise agreed by the affected tax jurisdictions, any such agreement shall
4 provide that payments in lieu of taxes shall be allocated among affected
5 tax jurisdictions in proportion to the amount of real property tax and
6 other taxes which would have been received by each affected tax juris-
7 diction had the project not been tax exempt due to the status of the
8 agency involved in the project. A copy of any such agreement shall be
9 delivered to each affected tax jurisdiction within fifteen days of sign-
10 ing the agreement[. In the absence of any such written agreement,
11 payments in lieu of taxes made by an agency shall be allocated in the
12 same proportions as they had been prior to January first, nineteen
13 hundred ninety-three for so long as the agency's activities render a
14 project non-taxable by affected tax jurisdictions] and published by the
15 agency on its website;
16 [(16)] (19) To establish and re-establish its fiscal year; and
17 [(17)] (20) To [do all things necessary or convenient to] carry out
18 its purposes and exercise [the] those powers expressly given in this
19 title.
20 § 4. The general municipal law is amended by adding a new section
21 858-c to read as follows:
22 § 858-c. Purchase or lease of real property owned by a county, city,
23 town or village. 1. The local legislative body of a county, city, town
24 or village may by resolution determine that specifically described real
25 property owned by the county, city, town or village is not required for
26 use by such county, city, town or village and authorize the county,
27 city, town or village to sell or lease such real property to an agency;
28 provided, however, that title to such land be not declared inalienable
29 as a forest preserve or a parkland.
30 2. Notwithstanding the provisions of any general, special or local
31 law, charter or ordinance to the contrary, such sale or lease may be
32 made without appraisal, public notice (except as provided in subdivision
33 four of this section), or public bidding for such price or rental and
34 upon such terms as may be agreed upon between the county, city, town or
35 village and said agency; provided, however, that in the case of a lease
36 the term may not exceed ninety-nine years and provided, further, that in
37 cities having a population of one million or more, no such sale or lease
38 shall be made without the approval of a majority of the members of the
39 borough board of the borough in which such real property is located.
40 3. Before any sale or lease to an agency shall be authorized, a public
41 hearing shall be held by the local legislative body or borough board to
42 consider the proposed sale or lease.
43 4. Notice of such hearing shall be published at least ten days before
44 the date set for the hearing in such publication and in such manner as
45 may be designated by the local legislative body or borough board. Such
46 notice shall include a description of the real property proposed to be
47 sold or leased; a statement of the estimated fair market value of the
48 real property proposed to be sold or leased; the value of the financial
49 consideration to be received by the county, city, town or village from
50 such sale or lease of the real property; and a statement of the intended
51 use or disposition of such real property by the agency.
52 § 5. Subdivision 2 of section 859 of the general municipal law, as
53 amended by chapter 356 of the laws of 1993, is amended to read as
54 follows:
55 2. On or before September first of each year, the [commissioner of the
56 department of economic development] director of the authorities budget
A. 9773 5
1 office shall prepare and submit to the governor, speaker of the assem-
2 bly, majority leader of the senate, the chairperson of the senate
3 finance committee, the chairperson of the assembly ways and means
4 committee, the chairperson of the senate local government committee, the
5 chairperson of the assembly local government committee and the state
6 comptroller, a report setting forth a summary of the significant trends
7 in operations and financing by agencies and authorities; departures from
8 acceptable practices by agencies and authorities; a compilation by type
9 of the bonds and notes outstanding; a compilation of all outstanding
10 straight-lease transactions; an estimate of the total number of jobs
11 created and retained by agency or authority projects; and any other
12 information which in the opinion of the [commissioner] director bears
13 upon the discharge of the statutory functions of agencies and authori-
14 ties.
15 § 6. Subdivision 3 of section 859 of the general municipal law is
16 REPEALED.
17 § 7. Section 859-a of the general municipal law, as added by chapter
18 356 of the laws of 1993, is amended to read as follows:
19 § 859-a. Additional prerequisites to the provisions of financial
20 assistance. Prior to providing any financial assistance [of] totaling
21 more than one hundred thousand dollars to any project, the agency must
22 comply with the following prerequisites:
23 1. The agency must adopt a resolution describing the project and the
24 type and amount of financial assistance that the agency is contemplating
25 with respect to such project. Such assistance shall be consistent with
26 the uniform [tax exemption] financial assistance policy adopted by the
27 agency pursuant to subdivision four of section eight hundred seventy-
28 four of this [chapter] title, unless the agency has followed the proce-
29 dures for deviation from such policy specified in paragraph (b) of such
30 subdivision.
31 2. The agency must hold a public hearing with respect to the project
32 and the proposed financial assistance being contemplated by the agency
33 not less than thirty days prior to executing a written agreement to
34 provide financial assistance. Said public hearing shall be held in [a]
35 each city, town or village where the project to receive financial
36 assistance is located or proposes to locate. At said public hearing,
37 interested parties shall be provided reasonable opportunity, both orally
38 and in writing, to present their views with respect to the project and
39 the type and amount of financial assistance to be provided. The agency
40 shall also accept written comments up to seven days after such hearing
41 is held.
42 3. The agency must give at least ten days published notice of said
43 public hearing and shall, at the same time, provide notice of such hear-
44 ing to the chief executive officer of each affected tax jurisdiction
45 within which the project is located. The notice of hearing must state
46 the time and place of the hearing, contain a general, functional
47 description of the project, describe the prospective location of the
48 project, identify the initial owner, operator or manager of the project
49 and generally describe the financial assistance contemplated by the
50 agency with respect to the project.
51 4. The agency shall maintain a complete record of the hearing, includ-
52 ing all documents, oral statements, and written statements presented at
53 or within seven days following the hearing. All members shall be
54 provided with a copy of such record at least seven days before voting
55 whether to approve financial assistance for the project. Such record
A. 9773 6
1 shall also be posted on the agency web site at the time it is provided
2 to members.
3 § 8. The general municipal law is amended by adding four new sections
4 859-c, 859-d, 859-e and 859-f to read as follows:
5 § 859-c. Project application and approval criteria. 1. The project
6 applicant shall submit an application, developed by the agency, for
7 approval of a proposed project and financial assistance. The agency
8 shall adopt project application review and approval criteria that shall
9 be applied to all project applications under consideration for approval
10 and financial assistance. The decision to approve or not approve finan-
11 cial assistance shall be based on, but not limited to, consideration of
12 the following criteria:
13 (a) Strategic objectives. Consideration is to be given to the purpose
14 of the project, such as the nature of the planned business activity, the
15 extent to which the planned business activity is unrepresented or under-
16 represented in the community, and whether the project involves a busi-
17 ness interested in relocating from outside the state of New York.
18 (b) Job creation. A decision to fund a project shall be based on the
19 number of jobs to be created or retained by the proposed project, the
20 range of projected salaries and benefits associated with jobs to be
21 created, and the benchmarks and timeframes to be used by the project to
22 determine whether it is meeting projected job creation and retention
23 goals.
24 (c) The financial viability of the project. Approval for funding must
25 consider the extent to which the viability and success of the project is
26 dependent on financial assistance from the agency. The agency shall also
27 consider the amount and type of financial assistance being requested,
28 the amount and type of private financing required, the amount and type
29 of capital investment to be provided by the project applicant, and any
30 prior financial assistance provided to the project or to the project
31 applicant.
32 (d) Economic benefits. Funding decisions shall consider the potential
33 economic and financial impact of the project on existing businesses in
34 the area, on the affected tax jurisdictions, and on the local labor
35 market.
36 (e) Legal issues. Consideration shall be given to the project appli-
37 cant's record of compliance with applicable laws and regulations.
38 2. The project application review and approval criteria shall be
39 reviewed and approved annually at a regular meeting of the agency and
40 made available to the public on the agency's web site.
41 3. The agency shall provide the director of the authorities budget
42 office with an electronic copy of the application and project review and
43 approval criteria within thirty days of their adoption or revision.
44 4. The agency shall retain a written record of the evaluation of each
45 project application to document its decision to provide or deny finan-
46 cial assistance.
47 § 859-d. Financial assistance agreement. 1. The agency shall enter
48 into a written agreement with the project applicant prior to providing
49 financial assistance. The agreement shall include the following informa-
50 tion:
51 (a) a description of the amount and type of financial assistance to be
52 provided by the agency, including a description and the value of proper-
53 ty conveyed at less than fair market value;
54 (b) a description of the amount of financing to be provided by the
55 project applicant, including the amount and type of capital investment
56 to be provided;
A. 9773 7
1 (c) the purpose of the project;
2 (d) the amount, types, sources and commitments of any private financ-
3 ing;
4 (e) the projected number of new full-time and part-time positions
5 expected to be created over the period of financial assistance, and an
6 estimated schedule by year of when those positions will be created;
7 (f) the number and types of full-time and part-time jobs to be
8 retained, and the number of filled positions at the project as of the
9 date the agreement is executed;
10 (g) the types and value of other forms of financial assistance
11 provided to the project or requested by the project applicant from other
12 state or local government agencies or authorities; and
13 (h) the penalties to be imposed on the project applicant if the terms
14 of the agreement are not met.
15 2. The length of a financial assistance agreement shall be limited to
16 no more than five years; provided however that the agreement may be
17 renewed for up to five additional years if the agency determines that
18 the project applicant has acted in good faith to meet the terms and
19 conditions of the agreement. In no event may financial assistance in the
20 form of a loan or exemption from taxation be provided to a project for
21 more than ten years.
22 3. The financial assistance agreement shall be made available to the
23 public on the web site of the agency.
24 4. The agency shall adopt a methodology to evaluate the conformance of
25 each assisted project to the terms and conditions of the financial
26 assistance agreement. This methodology shall be made available to the
27 public on the agency's web site.
28 § 859-e. Recapture of certain financial assistance. 1. The agency,
29 pursuant to the terms and conditions of its financial assistance agree-
30 ment, may recapture financial assistance to a project from real property
31 tax exemptions, mortgage recording tax exemptions, or local sales or
32 compensating use tax exemptions if (a) the project violates state or
33 federal tax law, labor law, environmental protection law, or contract
34 law, or any state or federal rule or regulation implementing such law,
35 as determined by a court of competent jurisdiction or administrative
36 tribunal, provided that such court or tribunal concludes that the
37 violation would cause material harm to the economy or quality of life of
38 the community; or (b) all or part of the project's business activity or
39 workforce is moved to a location outside the community served by the
40 agency and by doing so violates the terms and conditions of its finan-
41 cial assistance agreement.
42 2. An agency which elects to initiate the recapture of financial
43 assistance pursuant to subdivision one of this section must notify the
44 recipient of such financial assistance in writing that it is in default
45 of its financial assistance agreement and may direct the recipient of
46 financial assistance to repay up to the full amount of such financial
47 assistance received as of the date of the written notice plus interest
48 at the rate set forth in section five thousand four of the civil prac-
49 tice law and rules.
50 3. Financial assistance recaptured pursuant to this section and any
51 interest paid shall be redistributed to affected tax jurisdictions in
52 proportion to the amount of real property tax and other taxes which
53 would have been received by each affected tax jurisdiction had the
54 project not been tax exempt. Unless otherwise agreed to in writing by an
55 affected tax jurisdiction, the agency shall not retain any portion of
56 such funds as an administrative or project fee.
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1 § 859-f. Wages and standards. Whenever a recipient of financial
2 assistance from an agency enters into a contract, subcontract, lease or
3 other agreement for or in connection with the construction, demolition,
4 reconstruction, rehabilitation, repair, or renovation of an assisted
5 project, the recipient of financial assistance shall pay workers engaged
6 in such work no less than the prevailing rate of wage and supplements
7 under article eight of the labor law.
8 § 9. Subdivision 1 of section 862 of the general municipal law, as
9 amended by section 1 of part J of chapter 59 of the laws of 2013, is
10 amended to read as follows:
11 (1) No [funds] financial assistance of the agency shall be used in
12 respect [of] to any project if the [completion thereof would result in]
13 project approval or provision of financial assistance contributes to the
14 removal of [an industrial or manufacturing plant of] all or part of the
15 project occupant from one area of the state to another area of the state
16 or in the abandonment of one or more [plants or] facilities of the
17 project occupant located within the state, or provides the project with
18 a competitive advantage over existing like businesses in the same indus-
19 try located in the same city, town, or village as such project,
20 provided, however, that [neither restriction] such restrictions shall
21 not apply if the agency shall determine on the basis of the application
22 before it that the project is reasonably necessary to discourage the
23 project occupant from removing such other plant or facility to a
24 location outside the state or is reasonably necessary to preserve the
25 competitive position of the project occupant in its respective industry.
26 § 10. Subdivision 4 of section 874 of the general municipal law, as
27 amended by chapter 357 of the laws of 1993, is amended to read as
28 follows:
29 (4) (a) The agency shall [establish] adopt a uniform [tax exemption]
30 financial assistance policy, [with input from] subject to the approval
31 of all affected tax jurisdictions, which shall be applicable to the
32 provision of financial assistance pursuant to section eight hundred
33 fifty-nine-a of this [chapter] title and shall provide guidelines for
34 the claiming of real property, mortgage recording, and sales tax
35 exemptions. Such guidelines shall include, but not be limited to: peri-
36 od of exemption; payments in lieu of taxes, as a percentage of
37 [exemption] taxes that would have been levied by or on behalf of
38 affected tax jurisdictions if the project was not tax exempt by reason
39 of agency involvement; types of projects for which exemptions can be
40 claimed; procedures for payments in lieu of taxes and instances in which
41 real property appraisals are to be performed as a part of an application
42 for tax exemption; in addition, agencies shall in adopting such policy
43 consider such issues as: the extent to which a project will create or
44 retain permanent, private sector jobs; the estimated value of any tax
45 exemptions to be provided; whether affected tax jurisdictions shall be
46 reimbursed by the project occupant if a project does not fulfill the
47 purposes for which an exemption was provided; the impact of a proposed
48 project on existing and proposed businesses and economic development
49 projects in the vicinity; the amount of private sector investment gener-
50 ated or likely to be generated by the proposed project; the demonstrated
51 public support for the proposed project; the likelihood of accomplishing
52 the proposed project in a timely fashion; the effect of the proposed
53 project upon the environment; the extent to which the proposed project
54 will require the provision of additional services, including, but not
55 limited to additional educational, transportation, police, emergency
56 medical or fire services; and the extent to which the proposed project
A. 9773 9
1 will provide additional sources of revenue for municipalities and school
2 districts. The adopted uniform financial assistance policy shall be
3 provided to the chief executive officer and the members of the governing
4 body of each affected tax jurisdiction and shall be made available for
5 public inspection at the agency's office and on the agency's website
6 upon its adoption.
7 (b) The agency shall [establish a procedure] adopt criteria for devi-
8 ation from the uniform [tax exemption] financial assistance policy
9 required pursuant to this subdivision, which shall be subject to the
10 approval of all affected local tax jurisdictions. The agency shall set
11 forth in writing the reasons for deviation from such policy, and shall
12 further notify the affected local taxing jurisdictions of the proposed
13 deviation from such policy and the reasons therefor not less than sixty
14 days before such deviation from the uniform tax exemption policy takes
15 effect.
16 § 11. Section 1953 of the public authorities law, as added by chapter
17 759 of the laws of 1967, the opening paragraph and subdivisions 9 and 13
18 as amended by chapter 907 of the laws of 1972 and subdivision 8 as
19 amended, subdivision 14 as added and subdivisions 15 and 16 as renum-
20 bered by chapter 356 of the laws of 1993, is amended to read as follows:
21 § 1953. Purpose and powers of the authority. The purposes of the
22 authority shall be to promote, develop, encourage and assist in the
23 acquiring, constructing, reconstructing, improving, maintaining, equip-
24 ping and furnishing industrial, manufacturing, warehouse, civic facili-
25 ties, and commercial research facilities including industrial pollution
26 control facilities, transportation facilities including but not limited
27 to those relating to water, highway, rail and air, in one or more areas
28 of the city, particularly but not exclusively at the site of what was
29 formerly the Troy airport including an airstrip or airport located in
30 the southern section of the city and thereby advance the job opportu-
31 nities, health, general prosperity and economic welfare of the people of
32 said city and to improve their standard of living; provided, however,
33 that the authority shall not undertake any project if the completion
34 thereof would result in the removal of an industrial or manufacturing
35 plant of the project occupant from one area of the state to another area
36 of the state or in the abandonment of one or more plants or facilities
37 of the project applicant located within the state, provided, however,
38 that neither restriction shall apply if the authority shall determine on
39 the basis of the application before it that the project is reasonably
40 necessary to discourage the project occupant from removing such other
41 plant or facility to a location outside the state or is reasonably
42 necessary to preserve the competitive position of the project occupant
43 in its respective industry. To carry out said purposes, the authority
44 shall have power:
45 1. To sue and be sued;
46 2. To have a seal and alter the same at pleasure;
47 3. To acquire, hold and dispose of personal property for its corporate
48 purpose;
49 4. To acquire by purchase, grant, lease, gift, condemnation, or other-
50 wise and to use, real property or rights or easements therein necessary
51 for its corporate purposes, and to sell, convey, mortgage, lease,
52 pledge, exchange or otherwise dispose of any such property in such
53 manner as the authority shall determine. With respect to real property
54 conveyed to it by the city, however, such power of disposition shall be
55 limited as hereinafter provided in section nineteen hundred [five]
56 fifty-five of this title;
A. 9773 10
1 5. To acquire real property within the city of Troy as necessary for
2 its corporate purposes pursuant to section eight hundred fifty-eight-c
3 of the general municipal law;
4 6. To make by-laws for the management and regulation of its affairs
5 and, subject to agreements with its bondholders, for the regulation of
6 the use of the project;
7 [6.] 7. With the consent of the city, to use agents, employees and
8 facilities of the city, paying the city its agreed proportion of the
9 compensation or costs;
10 [7.] 8. To appoint officers, agents and employees, to prescribe their
11 qualifications and to fix their compensation and to pay the same out of
12 funds of the authority, subject, however, to the provisions of the civil
13 service law as hereinafter provided in section nineteen hundred [and
14 four] fifty-four of this title;
15 [8.] 9. To appoint an attorney, who may be the corporation counsel of
16 the city, and to fix the attorney's compensation for services which
17 shall be payable to the attorney, and to retain and employ private
18 consultants for professional and technical assistance and advice;
19 provided that an attorney acting as bond counsel for a project must file
20 with the authority a written statement in which the attorney identifies
21 each party to the transaction which such attorney represents. If bond
22 counsel provides any legal services to parties other than the authority,
23 the written statement must describe the nature of legal services
24 provided by such bond counsel to all parties to the transaction, includ-
25 ing the nature of the services provided to the authority;
26 [9.] 10. To make contracts and leases upon such terms as the authority
27 shall deem appropriate, including without limitation leases which grant
28 the tenant of a project an option to renew or an option to purchase the
29 project, or both, at a fixed or otherwise predetermined price and to
30 execute all instruments necessary or convenient;
31 [10.] 11. To acquire, construct, reconstruct, lease, improve, main-
32 tain, equip or furnish one or more projects;
33 [11.] 12. To accept gifts, grants, loans or contributions from, and
34 enter into contracts or other transactions with, the United States and
35 the state or any agency of either of them, any municipality, any public
36 or private corporation or any other legal entity, and to use any such
37 gifts, grants, loans or contributions for any of its corporate purposes;
38 13. To provide financial assistance in the form of loans to improve,
39 maintain or equip one or more projects consistent with its corporate
40 purposes;
41 14. To provide financial assistance in the form of grants to one or
42 more projects consistent with its corporate purposes;
43 [12.] 15. To borrow money and to issue bonds and to provide for the
44 rights of the holders thereof;
45 [13.] 16. To designate the depositories of its money either within or
46 without the state of New York;
47 [14.] 17. To enter into agreements requiring payments in lieu of
48 taxes. Such agreements shall be in writing and in addition to other
49 terms shall contain: the amount due annually to each affected tax juris-
50 diction (or a formula by which the amount due can be calculated), the
51 name and address of the person, office or agency to which payment shall
52 be delivered, the date on which payment shall be made, and the date on
53 which payment shall be considered delinquent if not paid. Unless other-
54 wise agreed by the affected tax jurisdictions, any such agreement shall
55 provide that payments in lieu of taxes shall be allocated among affected
56 tax jurisdictions in proportion to the amount of real property tax and
A. 9773 11
1 other taxes which would have been received by each affected tax juris-
2 diction had the project not been tax exempt due to the status of the
3 authority involved in the project. A copy of any such agreement shall be
4 delivered to each affected tax jurisdiction within fifteen days of sign-
5 ing the agreement. In the absence of any such written agreement,
6 payments in lieu of taxes made by an agency shall be allocated in the
7 same proportions as they had been prior to January first, nineteen
8 hundred ninety-three for so long as the authority's activities render a
9 project non-taxable by affected tax jurisdictions.
10 [15.] 18. To establish and reestablish its fiscal year; and
11 [16.] 19. To do all things necessary or convenient to carry out its
12 purposes and exercise the powers expressly given in this title.
13 § 12. Section 1953-a of the public authorities law, as added by chap-
14 ter 356 of the laws of 1993, subdivision 1 as amended by chapter 357 of
15 the laws of 1993, is amended to read as follows:
16 § 1953-a. Additional prerequisites to the provision of financial
17 assistance. Prior to providing any financial assistance [of] totaling
18 more than one hundred thousand dollars to any project, the authority
19 must comply with the following prerequisites:
20 1. The authority must adopt a resolution describing the project and
21 type and amount of the financial assistance that the authority is
22 contemplating with respect to such project. Such assistance shall be
23 consistent with the uniform [tax exemption] financial assistance policy
24 adopted by the agency pursuant to subdivision one of section nineteen
25 hundred sixty-three-a of this [chapter] title, unless the agency has
26 followed procedures for deviation from such policy specified in subdivi-
27 sion two of such section.
28 2. The authority must hold a public hearing with respect to the
29 project and the proposed financial assistance being contemplated by the
30 authority not less than thirty days prior to executing a written agree-
31 ment to provide financial assistance. At said public hearing, inter-
32 ested parties shall be provided reasonable opportunity, both orally and
33 in writing, to present their views with respect to the project and the
34 type and amount of financial assistance to be provided. The authority
35 shall also accept written comments up to seven days after such hearing
36 is held.
37 3. The authority must give at least ten days published notice of said
38 public hearing and shall, at the same time, provide notice of such hear-
39 ing to the chief executive officer of the affected tax jurisdiction
40 within which the project is located. The notice of hearing must state
41 the time and place of the hearing, contain a general, functional
42 description of the project, describe the prospective location of the
43 project, identify the initial owner, operator or manager of the project
44 and generally describe the financial assistance contemplated by the
45 authority with respect to the project.
46 4. The authority shall maintain a complete record of the hearing,
47 including all documents and oral statements, and written statements
48 presented at or within seven days following such hearing. All members
49 shall be provided with a copy of such record at least seven days before
50 voting whether to approve financial assistance for the project. Such
51 record shall also be posted on the authority web site at the time it is
52 provided to members.
53 § 13. The public authorities law is amended by adding four new
54 sections 1953-b, 1953-c, 1953-d and 1953-e to read as follows:
55 § 1953-b. Project application and approval criteria. 1. The project
56 applicant shall submit an application, developed by the authority, for
A. 9773 12
1 approval of a proposed project and financial assistance. The authority
2 shall adopt project application review and approval criteria that shall
3 be applied to all project applications under consideration for approval
4 and financial assistance. The decision to approve or not approve finan-
5 cial assistance shall be based on, but not limited to, consideration of
6 the following criteria:
7 (a) Strategic objectives. Consideration is to be given to the purpose
8 of the project, such as the nature of the planned business activity, the
9 extent to which the planned business activity is unrepresented or under-
10 represented in the community, and whether the project involves a busi-
11 ness interested in relocating from outside the state of New York.
12 (b) Job creation. A decision to fund a project shall be based on the
13 number of jobs to be created or retained by the proposed project, the
14 range of projected salaries and benefits associated with jobs to be
15 created, and the benchmarks and timeframes to be used by the project to
16 determine whether it is meeting projected job creation and retention
17 goals.
18 (c) The financial viability of the project. Approval for funding shall
19 consider the extent to which the viability and success of the project is
20 dependent on financial assistance from the authority. The authority
21 shall also consider the amount and type of financial assistance being
22 requested, the amount and type of private financing required, the amount
23 and type of capital investment to be provided by the project applicant,
24 and any prior financial assistance provided to the project or to the
25 project applicant.
26 (d) Economic benefits. Funding decisions shall consider the potential
27 economic and financial impact of the project on existing businesses in
28 the area, on the affected tax jurisdictions, and on the local labor
29 market.
30 (e) Legal issues. Consideration shall be given to the project appli-
31 cant's record of compliance with applicable laws and regulations.
32 2. The project application review and approval criteria shall be
33 reviewed and approved annually at a regular meeting of the authority and
34 made available to the public on the authority's web site.
35 3. The authority shall provide the director of the authorities budget
36 office with an electronic copy of the application and project review and
37 approval criteria within thirty days of their adoption or revision.
38 4. The authority shall retain a written record of the evaluation of
39 each project application to document its decision to provide or deny
40 financial assistance.
41 § 1953-c. Financial assistance agreement. 1. The authority shall enter
42 into a written agreement with the project applicant prior to providing
43 financial assistance. The agreement shall include the following informa-
44 tion:
45 (a) a description of the amount and type of financial assistance to be
46 provided by the authority, including a description and the value of
47 property conveyed at less than fair market value;
48 (b) a description of the amount of financing to be provided by the
49 project applicant, including the amount and type of capital investment
50 to be provided;
51 (c) the purpose of the project;
52 (d) the amount, types, sources and commitments of any private financ-
53 ing;
54 (e) the projected number of new full-time and part-time positions
55 expected to be created over the period of financial assistance, and an
56 estimated schedule by year of when those positions will be created;
A. 9773 13
1 (f) the number and types of full-time and part-time jobs to be
2 retained, and the number of filled positions at the project as of the
3 date the agreement is executed;
4 (g) the types and value of other forms of financial assistance
5 provided to the project or requested by the project applicant from other
6 state or local government agencies or authorities; and
7 (h) the penalties to be imposed on the project applicant if the terms
8 of the agreement are not met.
9 2. The length of a financial assistance agreement shall be limited to
10 no more than five years; provided however that the agreement may be
11 renewed for up to five additional years if the authority determines that
12 the project applicant has acted in good faith to meet the terms and
13 conditions of the agreement. In no event may financial assistance in the
14 form of a loan or exemption from taxation be provided to a project for
15 more than ten years.
16 3. The financial assistance agreement shall be made available to the
17 public on the web site of the authority.
18 4. The authority shall adopt a methodology to evaluate the conformance
19 of each assisted project to the terms and conditions of the financial
20 assistance agreement. This methodology shall be made available to the
21 public on the authority's web site.
22 § 1953-d. Recapture of certain financial assistance. 1. The authority,
23 pursuant to the terms and conditions of its financial assistance agree-
24 ment, may recapture financial assistance to a project from the proceeds
25 of bonds issued by the authority, mortgage recording tax exemptions, or
26 local sales or compensating use tax exemptions if (a) the project
27 violates state or federal tax law, labor law, environmental protection
28 law, or contract law, or any state or federal rule or regulation imple-
29 menting such law, as determined by a court of competent jurisdiction or
30 administrative tribunal, provided that such court or tribunal concludes
31 that the violation would cause material harm to the economy or quality
32 of life of the community; or (b) all or part of the project's business
33 activity or workforce is moved to a location outside the community
34 served by the authority and by doing so violates the terms and condi-
35 tions of its financial assistance agreement.
36 2. An authority which elects to initiate the recapture of financial
37 assistance pursuant to subdivision one of section eight hundred fifty-
38 nine-e of the general municipal law must notify the recipient of such
39 financial assistance in writing that it is in default of its financial
40 assistance agreement and may direct the recipient of financial assist-
41 ance to repay up to the full amount of such financial assistance
42 received as of the date of the written notice plus interest at the rate
43 set forth in section five thousand four of the civil practice law and
44 rules.
45 3. Financial assistance recaptured pursuant to this section and any
46 interest paid shall be redistributed to affected tax jurisdictions in
47 proportion to the amount of real property tax and other taxes which
48 would have been received by each affected tax jurisdiction had the
49 project not been tax exempt. Unless otherwise agreed to in writing by an
50 affected tax jurisdiction, the authority shall not retain any portion of
51 such funds as an administrative or project fee.
52 § 1953-e. Wages and standards. Whenever a recipient of financial
53 assistance from the authority enters into a contract, subcontract, lease
54 or other agreement for or in connection with the construction, demoli-
55 tion, reconstruction, rehabilitation, repair, or renovation of an
56 assisted project, the recipient of financial assistance shall pay work-
A. 9773 14
1 ers engaged in such work no less than the prevailing rate of wage and
2 supplements under article eight of the labor law.
3 § 14. Section 1963-a of the public authorities law, as amended by
4 chapter 357 of the laws of 1993, is amended to read as follows:
5 § 1963-a. Uniform [tax exemption] financial assistance policy. 1. The
6 authority shall [establish] adopt a uniform [tax exemption] financial
7 assistance policy, [with input from] subject to the approval of affected
8 local taxing jurisdictions, which shall be applicable to provisions of
9 financial assistance pursuant to section nineteen hundred fifty-three-a
10 of this [chapter] title and shall provide guidelines for the claiming of
11 real property, mortgage recording, and sales tax exemptions. Such guide-
12 lines shall include, but not be limited to: period of exemption;
13 payments in lieu of taxes as a percentage of [exemption] taxes that
14 would have been levied by or on behalf of affected tax jurisdictions if
15 the project was not exempt by reason of authority involvement; types of
16 projects for which exemptions can be claimed; procedures for payments in
17 lieu of taxes and instances in which real property appraisals are to be
18 performed as a part of an application for tax exemption; in addition,
19 the authority in adopting such policy shall consider such issues as: the
20 extent to which a project will create or retain permanent, private
21 sector jobs; the estimated value of any tax exemption to be provided;
22 whether affected tax jurisdictions should be reimbursed by the project
23 occupant if a project does not fulfill the purposes for which an
24 exemption was provided; the impact of a proposed project on existing and
25 proposed businesses and economic development projects in the vicinity;
26 the amount of private sector investment generated or likely to be gener-
27 ated by the proposed project; the demonstrated public support for the
28 proposed project; the likelihood of accomplishing the proposed project
29 in a timely fashion; the effect of the proposed project upon the envi-
30 ronment; the extent to which the proposed project will require the
31 provision of additional services, including, but not limited to addi-
32 tional educational, transportation, police, emergency medical or fire
33 services; and the extent to which the proposed project will provide
34 additional sources [or] of revenue for municipalities and school
35 districts. The adopted uniform financial assistance policy shall be
36 provided to the chief executive officer and members of the governing
37 body of each affected tax jurisdiction and shall be made available for
38 public inspection at the authority's office and on the authority's
39 website upon its adoption.
40 2. The authority shall [establish a procedure] adopt criteria for
41 deviation from the uniform [tax exemption] financial assistance policy
42 required pursuant to this section which shall be subject to the approval
43 of affected local tax jurisdictions. The authority shall set forth in
44 writing the reasons for deviation from such policy, and shall further
45 notify the affected tax jurisdictions of the proposed deviation from
46 such policy and the reasons therefor not less than sixty days before
47 such deviation from the uniform tax exemption policy takes effect.
48 § 15. Section 2306 of the public authorities law, as added by chapter
49 915 of the laws of 1969, the opening paragraph and an undesignated para-
50 graph as amended by chapter 304 of the laws of 2013, subdivision 9 as
51 amended by chapter 556 of the laws of 1973 and subdivision 8 as amended,
52 subdivision 14 as added and subdivisions 15 and 16 as renumbered by
53 chapter 356 of the laws of 1993, is amended to read as follows:
54 § 2306. Purpose and powers of the authority. The purposes of the
55 authority shall be to promote, develop, encourage and assist in the
56 acquiring, constructing, reconstructing, improving, maintaining, equip-
A. 9773 15
1 ping and furnishing industrial, manufacturing, warehouse, civic facili-
2 ties, commercial and research facilities and facilities for use by a
3 federal agency or a medical facility including industrial pollution
4 control facilities, which may include transportation facilities includ-
5 ing but not limited to those relating to water, highway, rail and air,
6 in one or more areas of the city, and thereby advance the job opportu-
7 nities, health, general prosperity and economic welfare of the people of
8 said city and to improve their medical care and standard of living;
9 provided, however, that the authority shall not undertake any project if
10 the completion thereof would result in the removal of an industrial or
11 manufacturing plant of the project occupant from one area of the state
12 to another area of the state or in abandonment of one or more plants or
13 facilities of the project applicant located within the state, provided,
14 however, that neither restriction shall apply if the authority shall
15 determine on the basis of the application before it that the project is
16 reasonably necessary to discourage the project occupant from removing
17 such other plant or facility to a location outside the state or is
18 reasonably necessary to preserve the competitive position of the project
19 occupant in its respective industry. Except as otherwise provided for in
20 this section, no financial assistance of the authority shall be provided
21 in respect of any project where facilities or property that are primari-
22 ly used in making retail sales to customers who personally visit such
23 facilities constitute more than one-third of the total project cost. For
24 the purposes of this article, "retail sales" shall mean: (i) sales by a
25 registered vendor under article twenty-eight of the tax law primarily
26 engaged in the retail sale of tangible personal property, as defined in
27 subparagraph (i) of paragraph four of subdivision (b) of section eleven
28 hundred one of the tax law; or (ii) sales of a service to such custom-
29 ers. Except, however, that tourism destination projects shall not be
30 prohibited by this paragraph. For the purpose of this paragraph, "tour-
31 ism destination" shall mean a location or facility which is likely to
32 attract a significant number of visitors from outside the economic
33 development region as established by section two hundred thirty of the
34 economic development law, in which the project is located.
35 Notwithstanding the provisions of this section to the contrary, such
36 financial assistance may, however, be provided to a project where facil-
37 ities or property that are primarily used in making retail sales of
38 goods or services to customers who personally visit such facilities to
39 obtain such goods or services constitute more than one-third of the
40 total project cost, where: (i) the predominant purpose of the project
41 would be to make available goods or services which would not, but for
42 the project, be reasonably accessible to the residents of the city of
43 Auburn because of a lack of reasonably accessible retail trade facili-
44 ties offering such goods or services; or (ii) the project is located in
45 a highly distressed area. With respect to projects authorized pursuant
46 to this paragraph no project shall be approved unless the authority
47 shall find after the public hearing required by section twenty-three
48 hundred seven of this title that undertaking the project will serve the
49 public purposes of this article by preserving permanent, private sector
50 jobs or increasing the overall number of permanent, private sector jobs
51 in the state. Where the authority makes such a finding, prior to provid-
52 ing financial assistance to the project by the authority, the chief
53 executive officer of the city of Auburn shall confirm the proposed
54 action of the authority. To carry out said purpose, the authority shall
55 have power:
56 1. To sue and be sued;
A. 9773 16
1 2. To have a seal and alter the same at pleasure;
2 3. To acquire, hold and dispose of personal property for its corporate
3 purpose;
4 4. To acquire by purchase, grant, lease, gift, condemnation, or other-
5 wise and to use, real property or rights or easements therein necessary
6 for its corporate purposes, and to sell, convey, mortgage, lease,
7 pledge, exchange or otherwise dispose of any such property in such
8 manner as the authority shall determine. With respect to real property
9 conveyed to it by the city, however, such power of disposition shall be
10 limited as hereinafter provided in section twenty-three hundred ten of
11 this title;
12 5. To acquire real property within the city of Auburn as necessary for
13 its corporate purposes pursuant to section eight hundred fifty-eight-c
14 of the general municipal law;
15 6. To make by-laws for the management and regulation of its affairs
16 and, subject to agreements with its bondholders, for the regulation of
17 the use of the project[.];
18 [6.] 7. With the consent of the city, to use agents, employees and
19 facilities of the city, paying the city its agreed proportion of the
20 compensation or costs[.];
21 [7.] 8. To appoint officers, agents and employees, to prescribe their
22 qualifications and to fix their compensation and to pay the same out of
23 funds of the authority, subject, however, to the provisions of the civil
24 service law hereinafter provided in section twenty-three hundred eight
25 of this title;
26 [8.] 9. To retain and employ financial advisors, engineers, archi-
27 tects, attorneys and other consultants for professional and technical
28 assistance and advice; that an attorney acting as bond counsel for a
29 project must file with the authority a written statement in which the
30 attorney identifies each party to the transaction which such attorney
31 represents. If bond counsel provides any legal services to the parties
32 other than the authority, the written statement must describe the nature
33 of legal services provided by such bond counsel to all parties to the
34 transaction, including the nature of the services provided to the
35 authority;
36 [9.] 10. To make contracts and leases upon such terms as the authority
37 shall deem appropriate, including without limitation leases which grant
38 the tenant of a project an option to renew or an option to purchase the
39 project, or both, at a fixed or otherwise predetermined price, and to
40 execute all instruments necessary or convenient;
41 [10.] 11. To acquire, construct, reconstruct, lease, improve, main-
42 tain, equip or furnish one or more projects;
43 [11.] 12. To accept gifts, grants, loans or contributions from, and
44 enter into contracts or other transactions with, the United States and
45 the state or any agency of either of them, any municipality, any public
46 or private corporation or any other legal entity, and to use any such
47 gifts, grants, loans or contributions for any of its corporate purposes;
48 13. To provide financial assistance in the form of loans to improve,
49 maintain or equip one or more projects consistent with its corporate
50 purposes;
51 14. To provide financial assistance in the form of grants for one or
52 more projects consistent with its corporate purposes;
53 [12.] 15. To borrow money and to issue bonds and to provide for the
54 rights of the holders thereof;
55 [13.] 16. To designate the depositories of its money in the city of
56 Auburn[.];
A. 9773 17
1 [14.] 17. To enter into agreements requiring payments in lieu of
2 taxes. Such agreements shall be in writing and in addition to other
3 terms shall contain: the amount due annually to each affected tax juris-
4 diction (or a formula by which the amount due can be calculated), the
5 name and address of the person, office or agency to which payment shall
6 be delivered, the date on which the payment shall be made, and the date
7 on which payment shall be considered delinquent if not paid. Unless
8 otherwise agreed by the affected tax jurisdictions, any such agreement
9 shall provide that payments in lieu of taxes shall be allocated among
10 affected tax jurisdictions in proportion to the amount of real property
11 tax and other taxes which would have been received by each affected tax
12 jurisdiction had the project not been tax exempt due to the status of
13 the agency involved in the project. A copy of any such agreement shall
14 be delivered to each tax affected jurisdiction within fifteen days of
15 signing the agreement. In the absence of any such written agreement,
16 payments in lieu of taxes shall be allocated in the same proportions as
17 they had been prior to January first, nineteen hundred ninety-three for
18 so long as the authority's activities render a project non-taxable by
19 affected tax jurisdictions[.];
20 [15.] 18. To establish and reestablish its fiscal year; and
21 [16.] 19. To do all things necessary or convenient to carry out its
22 purposes and exercise the powers expressly given in this title.
23 § 16. Section 2307 of the public authorities law, as added by chapter
24 356 of the laws of 1993, and subdivision 1 as amended by chapter 357 of
25 the laws of 1993, is amended to read as follows:
26 § 2307. Additional prerequisites to the provision of financial assist-
27 ance. Prior to providing any financial assistance [of] totaling more
28 than one hundred thousand dollars to any project, the authority must
29 comply with the following prerequisites:
30 1. The authority must adopt a resolution describing the project and
31 type and amount of the financial assistance that the authority is
32 contemplating with respect to such project. Such assistance shall be
33 consistent with the uniform [tax exemption] financial assistance policy
34 adopted by the agency pursuant to subdivision one of section twenty-
35 three hundred fifteen of this chapter, unless the agency has followed
36 procedures for deviation from such policy specified in subdivision two
37 of such section.
38 2. The authority must hold a public hearing with respect to the
39 project and the proposed financial assistance being contemplated by the
40 authority not less than thirty days prior to executing a written agree-
41 ment to provide financial assistance. At said public hearing, inter-
42 ested parties shall be provided reasonable opportunity, both orally and
43 in writing, to present their views with respect to the project and the
44 type and amount of financial assistance to be provided. The authority
45 shall also accept written comments up to seven days after such hearing
46 is held.
47 3. The authority must give at least ten days published notice of said
48 public hearing and shall, at the same time, provide notice of such hear-
49 ing to the chief executive officer of each affected tax [jurisidiction]
50 jurisdiction within which the project is located. The notice of hearing
51 must state the time and place of the hearing, contain a general, func-
52 tional description of the project, describe the prospective location of
53 the project, identify the initial owner, operator or manager of the
54 project and generally describe the financial assistance contemplated by
55 the authority with respect to the project.
A. 9773 18
1 4. The authority shall maintain a complete record of the hearing,
2 including all documents and oral statements, and written statements
3 presented at or within seven days following such hearing. All members
4 shall be provided with a copy of such record at least seven days before
5 deciding whether to approve financial assistance for the project. Such
6 record shall also be posted on the authority web site at the time it is
7 provided to members.
8 § 17. The public authorities law is amended by adding four new
9 sections 2307-a, 2307-b, 2307-c and 2307-d to read as follows:
10 § 2307-a. Project application and approval criteria. 1. The project
11 applicant shall submit an application, developed by the authority, for
12 approval of a proposed project and financial assistance. The authority
13 shall adopt project application review and approval criteria that shall
14 be applied to all project applications under consideration for approval
15 and financial assistance. The decision to approve or not approve finan-
16 cial assistance shall be based on, but not limited to, consideration of
17 the following criteria:
18 (a) Strategic objectives. Consideration is to be given to the purpose
19 of the project, such as the nature of the planned business activity, the
20 extent to which the planned business activity is unrepresented or under-
21 represented in the community, and whether the project involves a busi-
22 ness interested in relocating from outside the state of New York.
23 (b) Job creation. A decision to fund a project shall be based on the
24 number of jobs to be created or retained by the proposed project, the
25 range of projected salaries and benefits associated with jobs to be
26 created, and the benchmarks and timeframes to be used by the project to
27 determine whether it is meeting projected job creation and retention
28 goals.
29 (c) The financial viability of the project. Approval for funding shall
30 consider the extent to which the viability and success of the project is
31 dependent on financial assistance from the authority. The authority
32 shall also consider the amount and type of financial assistance being
33 requested, the amount and type of private financing required, the amount
34 and type of capital investment to be provided by the project applicant,
35 and any prior financial assistance provided to the project or to the
36 project applicant.
37 (d) Economic benefits. Funding decisions shall consider the potential
38 economic and financial impact of the project on existing businesses in
39 the area, on the affected tax jurisdictions, and on the local labor
40 market.
41 (e) Legal issues. Consideration shall be given to the project appli-
42 cant's record of compliance with applicable laws and regulations.
43 2. The project application review and approval criteria shall be
44 reviewed and approved annually at a regular meeting of the authority and
45 made available to the public on the authority's web site.
46 3. The authority shall provide the director of the authorities budget
47 office with an electronic copy of the application and project review and
48 approval criteria within thirty days of their adoption or revision.
49 4. The authority shall retain a written record of the evaluation of
50 each project application to document its decision to provide or deny
51 financial assistance.
52 § 2307-b. Financial assistance agreement. 1. The authority shall enter
53 into a written agreement with the project applicant prior to providing
54 financial assistance. The agreement shall include the following informa-
55 tion:
A. 9773 19
1 (a) a description of the amount and type of financial assistance to be
2 provided by the authority, including a description and the value of
3 property conveyed at less than fair market value;
4 (b) a description of the amount of financing to be provided by the
5 project applicant, including the amount and type of capital investment
6 to be provided;
7 (c) the purpose of the project;
8 (d) the amount, types, sources and commitments of any private financ-
9 ing;
10 (e) the projected number of new full-time and part-time positions
11 expected to be created over the period of financial assistance, and an
12 estimated schedule by year of when those positions will be created;
13 (f) the number and types of full-time and part-time jobs to be
14 retained, and the number of filled positions at the project as of the
15 date the agreement is executed;
16 (g) the types and value of other forms of financial assistance
17 provided to the project or requested by the project applicant from other
18 state or local government agencies or authorities; and
19 (h) the penalties to be imposed on the project applicant if the terms
20 of the agreement are not met.
21 2. The length of a financial assistance agreement shall be limited to
22 no more than five years; provided however that the agreement may be
23 renewed for up to five additional years if the authority determines that
24 the project applicant has acted in good faith to meet the terms and
25 conditions of the agreement. In no event may financial assistance in the
26 form of a loan or exemption from taxation be provided to a project for
27 more than ten years.
28 3. The financial assistance agreement shall be made available to the
29 public on the web site of the authority.
30 4. The authority shall adopt a methodology to evaluate the conformance
31 of each assisted project to the terms and conditions of the financial
32 assistance agreement. This methodology shall be made available to the
33 public on the authority's web site.
34 § 2307-c. Recapture of certain financial assistance. 1. The authority,
35 pursuant to the terms and conditions of its financial assistance agree-
36 ment, may recapture financial assistance to a project from the proceeds
37 of bonds issued by the authority, mortgage recording tax exemptions, or
38 local sales or compensating use tax exemptions if (a) the project
39 violates state or federal tax law, labor law, environmental protection
40 law, or contract law, or any state or federal rule or regulation imple-
41 menting such law, as determined by a court of competent jurisdiction or
42 administrative tribunal, provided that such court or tribunal concludes
43 that the violation would cause material harm to the economy or quality
44 of life of the community; or (b) all or part of the project's business
45 activity or workforce is moved to a location outside the community
46 served by the authority and by doing so violates the terms and condi-
47 tions of its financial assistance agreement.
48 2. An authority which elects to initiate the recapture of financial
49 assistance pursuant to subdivision one of section eight hundred fifty-
50 nine-e of the general municipal law must notify the recipient of such
51 financial assistance in writing that it is in default of its financial
52 assistance agreement and may direct the recipient of financial assist-
53 ance to repay up to the full amount of such financial assistance
54 received as of the date of the written notice plus interest at the rate
55 set forth in section five thousand four of the civil practice law and
56 rules.
A. 9773 20
1 3. Financial assistance recaptured pursuant to this section and any
2 interest paid shall be redistributed to affected tax jurisdictions in
3 proportion to the amount of real property tax and other taxes which
4 would have been received by each affected tax jurisdiction had the
5 project not been tax exempt. Unless otherwise agreed to in writing by an
6 affected tax jurisdiction, the authority shall not retain any portion of
7 such funds as an administrative or project fee.
8 § 2307-d. Wages and standards. Whenever a recipient of financial
9 assistance from the authority enters into a contract, subcontract, lease
10 or other agreement for or in connection with the construction, demoli-
11 tion, reconstruction, rehabilitation, repair, or renovation of an
12 assisted project, the recipient of financial assistance shall pay work-
13 ers engaged in such work no less than the prevailing rate of wage and
14 supplements under article eight of the labor law.
15 § 18. Section 2315 of the public authorities law, as amended by chap-
16 ter 357 of the laws of 1993, is amended to read as follows:
17 § 2315. Uniform [tax exemption] financial assistance policy. 1. The
18 authority shall [establish] adopt a uniform [tax exemption] financial
19 assistance policy, [with input from] subject to the approval of affected
20 local taxing jurisdictions, which shall be applicable to provisions of
21 financial assistance pursuant to section twenty-three hundred seven of
22 this [chapter] title and shall provide guidelines for the claiming of
23 real property, mortgage recording, and sales tax exemptions. Such guide-
24 lines shall include, but not be limited to: period of exemption;
25 payments in lieu of taxes as a percentage of [exemption] taxes that
26 would have been levied by or on behalf of affected tax jurisdictions if
27 the project was not exempt by reason of authority involvement; types of
28 projects for which exemptions may be claimed; procedures for payments in
29 lieu of taxes and instances in which real property appraisals are to be
30 performed as a part of an application for tax exemption; in addition,
31 the authority in adopting such policy shall consider such issues as: the
32 extent to which a project will create or retain permanent, private
33 sector jobs; the estimated value of any tax exemption to be provided;
34 whether affected tax jurisdictions should be reimbursed by the project
35 occupant if a project does not fulfill the purposes for which an
36 exemption was provided; the impact of a proposed project on existing and
37 proposed businesses and economic development projects in the vicinity;
38 the amount of private sector investment generated or likely to be gener-
39 ated by the proposed project; the demonstrated public support for the
40 proposed project; the likelihood of accomplishing the proposed project
41 in a timely fashion; the effect of the proposed project upon the envi-
42 ronment; the extent to which the proposed project will require the
43 provision of additional services, including, but not limited to addi-
44 tional educational, transportation, police, emergency medical or fire
45 services; and the [extend] extent to which the proposed project will
46 provide additional sources of revenue for municipalities and school
47 districts. The adopted uniform financial assistance policy shall be
48 provided to the chief executive officer and members of the governing
49 body of each affected tax jurisdiction and shall be made available for
50 public inspection at the authority's office and on the authority's
51 website upon its adoption.
52 2. The authority shall [establish a procedure] adopt criteria for
53 deviation from the uniform [tax exemption] financial assistance policy
54 required pursuant to this section which shall be subject to the approval
55 of affected local tax jurisdictions. The authority shall set forth in
56 writing the reasons for deviation from such policy, and shall further
A. 9773 21
1 notify the affected local taxing jurisdictions of the proposed deviation
2 from such policy and the reasons therefor not less than sixty days
3 before such deviation from the uniform tax exemption policy shall take
4 effect.
5 § 19. Subdivision 1 of section 2976 of the public authorities law, as
6 amended by section 1 of part C of chapter 19 of the laws of 2010, is
7 amended to read as follows:
8 1. Notwithstanding any other law to the contrary, public benefit
9 corporations (which for purposes of this section shall include indus-
10 trial development agencies created pursuant to title one of article
11 eighteen-A of the general municipal law or any other provision of law
12 and the New York city housing development corporation created pursuant
13 to article twelve of the private housing finance law) which issue bonds,
14 notes or other obligations and not-for-profit corporations that issue
15 bonds on behalf of the state or a political subdivision thereof shall
16 pay to the state a bond issuance charge upon the issuance of such bonds
17 in an amount determined pursuant to subdivision two of this section.
18 Such charge shall be paid to the state department of taxation and
19 finance, upon forms prescribed therefor, no later than fifteen days from
20 the end of the month within which such bonds are issued.
21 § 20. The not-for-profit corporation law is amended by adding a new
22 section 206 to read as follows:
23 § 206. Financial assistance agreement.
24 1. A corporation, including a local development corporation, deter-
25 mined to be a local authority pursuant to subdivision two of section two
26 and paragraph (j) of subdivision one of section six of the public
27 authorities law that provides financial assistance to a project in the
28 form of a grant, loan, exemption from taxation, or contribution for the
29 public purpose of relieving or reducing unemployment, promoting and
30 marketing job opportunities, or supporting the formation, relocation,
31 expansion, or retention of business shall enter into a written agreement
32 with the project applicant prior to providing financial assistance.
33 2. The agreement shall include the following information:
34 (a) a description of the amount and type of financial assistance to be
35 provided by the corporation, including a description and the value of
36 property conveyed at less than fair market value;
37 (b) a description of the amount of financing to be provided by the
38 project applicant, including the amount and type of capital investment
39 to be provided;
40 (c) the purpose of the project;
41 (d) the amount, types, sources and commitments of any private financ-
42 ing;
43 (e) the projected number of new full-time and part-time positions
44 expected to be created over the period of financial assistance, and an
45 estimated schedule by year of when those positions will be created;
46 (f) the number and types of full-time and part-time jobs to be
47 retained, and the number of filled positions at the project as of the
48 date the agreement is executed;
49 (g) the types and value of other forms of financial assistance
50 provided to the project or requested by the project applicant from other
51 state or local government agencies or authorities; and
52 (h) the penalties to be imposed on the project applicant if the terms
53 of the agreement are not met.
54 2. The length of a financial assistance agreement shall be limited to
55 no more than five years; provided however that the agreement may be
56 renewed for up to five additional years if the corporation determines
A. 9773 22
1 that the project applicant has acted in good faith to meet the terms and
2 conditions of the agreement. In no event may financial assistance in the
3 form of a loan or exemption from taxation be provided to a project for
4 more than ten years.
5 3. The financial assistance agreement shall be made available to the
6 public on the web site of the corporation.
7 4. The corporation shall adopt a methodology to evaluate the conform-
8 ance of each assisted project to the terms and conditions of the finan-
9 cial assistance agreement. This methodology shall be made available to
10 the public on the corporation's web site.
11 5. (a) The corporation, pursuant to the terms and conditions of its
12 financial assistance agreement, may recapture financial assistance to a
13 project from grants, loans, real property tax exemptions, mortgage
14 recording tax exemptions, or local sales or compensating use tax
15 exemptions if (i) the project violates state or federal tax law, labor
16 law, environmental protection law, or contract law, or any state or
17 federal rule or regulation implementing such law, as determined by a
18 court of competent jurisdiction or administrative tribunal, provided
19 that such court or tribunal concludes that the violation would cause
20 material harm to the economy or quality of life of the community; or
21 (ii) all or part of the project's business activity or workforce is
22 moved to a location outside the community served by the corporation and
23 by doing so violates the terms and conditions of its financial assist-
24 ance agreement.
25 (b) A corporation which elects to initiate the recapture of financial
26 assistance pursuant to subdivision one of this section must notify the
27 recipient of such financial assistance in writing that it is in default
28 of its financial assistance agreement and may direct the recipient of
29 financial assistance to repay up to the full amount of such financial
30 assistance received as of the date of the written notice plus interest
31 at the rate set forth in section five thousand four of the civil prac-
32 tice law and rules.
33 (c) Financial assistance recaptured pursuant to this section and any
34 interest paid shall be redistributed to affected tax jurisdictions in
35 proportion to the amount of real property tax and other taxes which
36 would have been received by each affected tax jurisdiction had the
37 project not been tax exempt. Unless otherwise agreed to in writing by an
38 affected tax jurisdiction, the corporation shall not retain any portion
39 of such funds as an administrative or project fee.
40 6. Wages and standards. Whenever a recipient of financial assistance
41 from the corporation enters into a contract, subcontract, lease or other
42 agreement for or in connection with the construction, demolition, recon-
43 struction, rehabilitation, repair, or renovation of an assisted project,
44 the recipient of financial assistance shall pay workers engaged in such
45 work no less than the prevailing rate of wage and supplements under
46 article eight of the labor law.
47 § 21. Paragraphs (a), (b) and (d) of section 1411 of the not-for-pro-
48 fit corporation law, paragraph (a) as amended by chapter 847 of the laws
49 of 1970 and paragraph (b) as amended by chapter 549 of the laws of 2013,
50 are amended to read as follows:
51 (a) Purposes.
52 This section shall provide an additional and alternate method of
53 incorporation or reincorporation of not-for-profit corporations for any
54 of the purposes set forth in this paragraph [and shall not be deemed to
55 alter, impair or diminish the purposes, rights, powers or privileges of
56 any corporation heretofore or hereafter incorporated under this section
A. 9773 23
1 or under the stock or business corporation laws]. Corporations may be
2 incorporated or reincorporated under this section as not-for-profit
3 local development corporations operated for the exclusively charitable
4 or public purposes of relieving and reducing unemployment, promoting and
5 providing for additional and maximum employment, bettering and maintain-
6 ing job opportunities, instructing or training individuals to improve or
7 develop their capabilities for such jobs, carrying on scientific
8 research for the purpose of aiding a community or geographical area by
9 attracting new industry to the community or area or by encouraging the
10 development of, or retention of, an industry in the community or area[,
11 and lessening the burdens of government and acting in the public inter-
12 est, and any]. Any one or more counties, cities, towns or villages of
13 the state, or any combination thereof, or the New York job development
14 authority in exercising its power under the public authorities law to
15 encourage the organization of local development corporations, may cause
16 such corporations to be incorporated by public officers or private indi-
17 viduals or reincorporated upon compliance with the requirements of this
18 section, and it is hereby found, determined and declared that in carry-
19 ing out said purposes and in exercising the powers conferred by para-
20 graph (b) such corporations will be acting in the public interest and
21 performing an essential governmental function.
22 (b) Type of corporation.
23 A local development corporation [is] incorporated for one or more of
24 the purposes described in paragraph (a) of this section shall be a char-
25 itable corporation under this chapter.
26 (d) Purchase or lease of real property owned by a county, city, town
27 or village.
28 (1) The local legislative body of a county, city, town or village or,
29 if there is a board of estimate in a city, then the board of estimate,
30 may by resolution determine that specifically described real property
31 owned by the county, city, town or village is not required for use by
32 such county, city, town or village and authorize the county, city, town
33 or village to sell or lease such real property to a local development
34 corporation incorporated or reincorporated under this article; provided,
35 however, that title to such land be not declared inalienable as a forest
36 preserve or a parkland.
37 (2) Notwithstanding the provisions of any general, special or local
38 law, charter or ordinance to the contrary, no such sale or lease may be
39 made without appraisal, public notice, (except as provided in subpara-
40 graph (4)) or public bidding [for such price or rental and upon such
41 terms as may be agreed upon between the county, city, town or village
42 and said local development corporation]; provided, however, that in case
43 of a lease the term may not exceed ninety-nine years and provided,
44 further, that in cities having a population of one million or more, no
45 such sale or lease shall be made without the approval of a majority of
46 the members of the borough [improvement] board of the borough in which
47 such real property is located.
48 (3) Before any sale or lease to a local development corporation incor-
49 porated or reincorporated under this article shall be authorized, a
50 public hearing shall be held by the local legislative body[, or by the
51 board of estimate, as the case may be,] to consider the proposed sale or
52 lease.
53 (4) Notice of such hearing shall be published at least ten days before
54 the date set for the hearing in such publication and in such manner as
55 may be designated by the local legislative body[, or the board of esti-
56 mate as the case may be]. Such notice shall include a description of the
A. 9773 24
1 real property proposed to be sold or leased; a statement of the esti-
2 mated fair market value of the real property proposed to be sold or
3 leased; the value of the financial consideration to be received by the
4 county, city, town or village from such sale or lease of the real prop-
5 erty; and a statement of the intended use or disposition of such real
6 property by the local development corporation.
7 (5) A local development corporation, incorporated or reincorporated
8 under this section, which purchases or leases real property from a coun-
9 ty, city, town or village, shall not, without the written approval of
10 the county, city, town or village, use such real property for any
11 purpose except the purposes set forth in the certificate of incorpo-
12 ration or reincorporation of said local development corporation. In the
13 event such real property is used in violation of the restrictions of
14 this paragraph, the attorney-general may bring an action or special
15 proceeding to enjoin the unauthorized use.
16 § 22. Paragraphs (e), (f), (g), (h), and (i) of section 1411 of the
17 not-for-profit corporation law are relettered paragraphs (f), (g), (h),
18 (i), and (j) and a new paragraph (e) is added to read as follows:
19 (e) Contracts with municipalities.
20 Any contract or other agreement between a local development corpo-
21 ration and a municipality or state authority or local authority for one
22 or more of the purposes described in paragraph (a) of this section
23 shall: (i) cause the local development corporation to be defined as a
24 local authority pursuant to subdivision two of section two of the public
25 authorities law; (ii) provide for the municipality or state authority or
26 local authority to receive fair and adequate consideration for the
27 services provided by the local development corporation; (iii) be subject
28 to the requirements of article five-A of the general municipal law; and
29 (iv) have a term not to exceed ten years, subject to one or more
30 renewals for a term not to exceed ten years upon the mutual consent of
31 the parties; provided however that a contract with a municipality shall
32 not be used to finance the municipality's operations or to acquire or
33 improve an asset for use of the municipality.
34 § 23. Paragraph (j) of section 1411 of the not-for-profit corporation
35 law, as relettered by section twenty-two of this act, is amended to read
36 as follows:
37 (j) Effect of section.
38 Corporations incorporated or reincorporated under this section shall
39 be organized and operated exclusively for the purposes set forth in
40 paragraph (a), shall have, in addition to the powers otherwise conferred
41 by law, the powers conferred by paragraph (c) of this section and shall
42 be subject to all the restrictions and limitations imposed by [paragraph
43 (e) and paragraph (g)] paragraphs (c), (d), (e), (h) and (i) of this
44 section. In so far as the provisions of this section are inconsistent
45 with the provisions of any other law, general or special, the provisions
46 of this section shall be controlling as to corporations incorporated or
47 reincorporated hereunder.
48 § 24. Federal preemption and severability. The provisions of each
49 section of this act shall be deemed severable, and the declaration by a
50 court of competent jurisdiction that any part thereof is preempted or
51 otherwise invalid shall not affect the remaining parts thereof.
52 § 25. This act shall take effect on the thirtieth day after it shall
53 have become a law, or January 1, 2015, whichever shall come first;
54 provided, however, that section sixteen of this act shall apply to bonds
55 issued or re-issued on or after the effective date of this act; and
56 provided, further, however, that if section 121 of chapter 549 of the
A. 9773 25
1 laws of 2013 shall not have taken effect on or before such date then
2 paragraph (b) of section 1411 of the not-for-profit corporation law as
3 amended by section twenty-one of this act shall take effect on the same
4 date and in the same manner as section 121 of chapter 549 of the laws of
5 2013 take effect.
