S T A T E   O F   N E W   Y O R K
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                                  3116

                       2009-2010 Regular Sessions

                          I N  A S S E M B L Y

                            January 22, 2009
                               ___________

Introduced  by  M.  of  A.  SCHROEDER  --  read once and referred to the
  Committee on Economic Development, Job Creation, Commerce and Industry

AN ACT to amend the executive law, in  relation  to  the  recoupment  of
  economic incentives to businesses

  THE  PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND ASSEM-
BLY, DO ENACT AS FOLLOWS:

  Section 1. The executive law is amended by adding a new section  163-b
to read as follows:
  S  163-B.  RECOUPMENT  OF  ECONOMIC INCENTIVES. 1. NOTWITHSTANDING ANY
INCONSISTENT PROVISION OF LAW, EACH CONTRACT, AGREEMENT OR UNDERSTANDING
BY WHICH A PERSON, FIRM, PARTNERSHIP,  COMPANY,  ASSOCIATION  OR  CORPO-
RATION  RECEIVES  AN AWARD, GRANT, LOAN, TAX ABATEMENT OR OTHER BUSINESS
INCENTIVE FROM THE STATE, ANY OF  ITS  POLITICAL  SUBDIVISIONS,  OR  ANY
DEPARTMENT, BUREAU, BOARD, COMMISSION, AUTHORITY, OR ANY OTHER AGENCY OR
INSTRUMENTALITY  OF  THE  STATE  OR  ITS  POLITICAL SUBDIVISIONS, OR ANY
PUBLIC BENEFIT CORPORATION AS DEFINED IN  SUBDIVISION  FOUR  OF  SECTION
SIXTY-SIX  OF THE GENERAL CONSTRUCTION LAW, OR ANY MUNICIPAL CORPORATION
AS DEFINED IN SUBDIVISION THREE OF SECTION THREE-A OF THE GENERAL MUNIC-
IPAL LAW FOR THE PURPOSES OF JOB TRAINING, JOB CREATION OR RETENTION, OR
THE DEVELOPMENT OF ITS OPERATION WITHIN THE  STATE,  SHALL  CONTAIN  THE
FOLLOWING PROVISIONS:
  (A)  A  STATED  PERIOD OF TIME WITHIN WHICH THE TERMS OF THE CONTRACT,
AGREEMENT OR UNDERSTANDING ARE TO BE FULLY EXECUTED AND COMPLETED;
  (B) A STATED PURPOSE AND THE AMOUNT OF THE AWARD, GRANT OR OTHER BUSI-
NESS INCENTIVE;
  (C) WHERE APPLICABLE, THE NUMBER OF PERSONS TO BE TRAINED PURSUANT  TO
THE TERMS OF THE CONTRACT, AGREEMENT OR UNDERSTANDING;
  (D)  WHERE  APPLICABLE,  THE  NUMBER OF JOBS TO BE CREATED OR RETAINED
PURSUANT TO THE TERMS OF THE CONTRACT, AGREEMENT OR UNDERSTANDING;

 EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                      [ ] is old law to be omitted.
                                                           LBD03167-01-9

A. 3116                             2
              

  (E) WHERE APPLICABLE, THE EXTENT OF THE OPERATIONS OR FACILITIES TO BE
DEVELOPED PURSUANT TO THE TERMS OF THE  CONTRACT,  AGREEMENT  OR  UNDER-
STANDING; AND
  (F)  NOTICE  TO  THE RECIPIENT THAT THE AWARD, GRANT OR OTHER BUSINESS
INCENTIVE SHALL BE SUBJECT TO RECOUPMENT PURSUANT TO THIS SECTION.
  2. EXCEPT AS PROVIDED IN SUBDIVISION  THREE  OF  THIS  SECTION,  EVERY
AWARD,  GRANT OR OTHER BUSINESS INCENTIVE AWARDED PURSUANT TO THIS CHAP-
TER SHALL BE SUBJECT TO REPAYMENT WITH INTEREST, BY THE RECIPIENT UPON A
FINDING BY THE AWARDING  ENTITY  THAT  THE  PERSON,  FIRM,  PARTNERSHIP,
COMPANY,   ASSOCIATION,  OR  CORPORATION  HAS  NOT  FULLY  EXECUTED  AND
COMPLETED THE STATED PURPOSES OR OBJECTIVES OF THE AWARD, GRANT OR OTHER
BUSINESS INCENTIVE WITHIN THE STATED PERIOD OF TIME AS SET FORTH IN  THE
CONTRACT, AGREEMENT OR UNDERSTANDING.
  3.  IF  THE  AWARDING  ENTITY  DETERMINES  THAT  THE RECIPIENT WHO HAS
RECEIVED AN AWARD, GRANT OR OTHER BUSINESS INCENTIVE UNDER THIS  CHAPTER
IS  NOT  COMPLYING WITH THE CONTRACT, AGREEMENT OR UNDERSTANDING ENTERED
INTO WITH THE AWARDING ENTITY, IT SHALL NOTIFY  THE  RECIPIENT  OF  SUCH
NONCOMPLIANCE.    SUCH NOTICE SHALL STATE THAT THE RECIPIENT IS ENTITLED
TO A HEARING AND AN OPPORTUNITY TO EXPLAIN  THE  NONCOMPLIANCE.  IF  THE
ENTITY  FINDS  THAT  THE  RECIPIENT  HAS NOT COMPLIED WITH THE CONTRACT,
AGREEMENT OR UNDERSTANDING, THE RECIPIENT SHALL BE  REQUIRED  TO  REFUND
THE FULL AMOUNT OF THE INCENTIVE PROVIDED, HOWEVER, THAT:
  (A)  UPON A FINDING THAT THE RECIPIENT HAS CREATED OR RETAINED SOME OF
THE JOBS PROMISED UNDER THE CONTRACT, AGREEMENT, OR  UNDERSTANDING,  THE
RECIPIENT  SHALL  ONLY BE REQUIRED TO REFUND THE AMOUNT WHICH REPRESENTS
THE JOBS WHICH IT FAILED TO CREATE OR RETAIN, OR
  (B) UPON A FINDING THAT THE RECIPIENT HAS FAILED  TO  DEVELOP  CERTAIN
FACILITIES  OR  OPERATIONS AS PROMISED UNDER THE CONTRACT, AGREEMENT, OR
UNDERSTANDING, THE RECIPIENT SHALL REFUND THE AMOUNT OF THE AWARD, GRANT
OR BUSINESS INCENTIVE AS FOLLOWS:
  (I) WHERE THE RECIPIENT HAS DEVELOPED ONE-THIRD OR LESS OF THE FACILI-
TIES OR OPERATIONS, THE RECIPIENT SHALL REFUND AT  LEAST  TWO-THIRDS  OF
THE AWARD, GRANT OR BUSINESS INCENTIVE;
  (II)  WHERE  THE  RECIPIENT  HAS  DEVELOPED  TWO-THIRDS OR LESS OF THE
FACILITIES OR OPERATIONS, THE RECIPIENT SHALL REFUND AT LEAST  ONE-THIRD
OF THE AWARD, GRANT OR BUSINESS INCENTIVE;
  (III)  WHERE THE RECIPIENT HAS DEVELOPED MORE THAN TWO-THIRDS BUT LESS
THAN ALL OF THE FACILITIES OR OPERATIONS AS PROMISED UNDER THE CONTRACT,
AGREEMENT OR UNDERSTANDING, THE RECIPIENT SHALL REFUND AN  AMOUNT  WHICH
THE  ENTITY DETERMINES TO BE A REASONABLE PROPORTION OF THE AWARD, GRANT
OR BUSINESS INCENTIVE NOT FULFILLED.
  4. UPON A FINDING THAT THE RECIPIENT OF THE  AWARD,  GRANT,  OR  OTHER
BUSINESS  INCENTIVE HAS NOT FULLY EXECUTED AND COMPLETED THE PURPOSES OR
OBJECTIVES OF THE AWARD, GRANT OR BUSINESS INCENTIVE, THE AWARDING ENTI-
TY MAY WAIVE REPAYMENT OF SUCH AWARD, GRANT  OR  BUSINESS  INCENTIVE  AS
REQUIRED  PURSUANT  TO THIS SECTION, UPON A FINDING THAT THE FAILURE WAS
CAUSED BY UNFORESEEN CIRCUMSTANCES BEYOND THE DIRECT OR INDIRECT CONTROL
OF THE RECIPIENT PERSON,  FIRM,  PARTNERSHIP,  COMPANY,  ASSOCIATION  OR
CORPORATION,  AND WAS NOT ATTRIBUTABLE TO BAD FAITH OR FRAUD. UNFORESEEN
CIRCUMSTANCES SHALL INCLUDE, BUT NOT BE LIMITED  TO,  MARKET  CONDITIONS
WHICH  ADVERSELY IMPACT UPON A RECIPIENT AND WHICH ARE OF SUCH MAGNITUDE
THAT A WAIVER OF REPAYMENT IS ABSOLUTELY NECESSARY TO ENSURE THE CONTIN-
UED OPERATIONS OF THE RECIPIENT AT THE LOCATION FOR WHICH THE  INCENTIVE
WAS  GRANTED  OR TO ENSURE CONTINUED EMPLOYMENT OF ITS EMPLOYEES AT SUCH
LOCATION. NO WAIVER OF FULL REPAYMENT MAY BE PROVIDED, HOWEVER, UPON THE
RELOCATION OUTSIDE OF NEW YORK STATE, OR FROM THE LOCATION SUCH  RECIPI-

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ENT  OCCUPIED  AT  THE  TIME  THE RECIPIENT RECEIVED THE AWARD, GRANT OR
BUSINESS INCENTIVE TO ANOTHER LOCATION IN THE STATE. UPON  THE  DETERMI-
NATION  OF  UNFORESEEN  CIRCUMSTANCES APPROPRIATE TO GRANT A WAIVER, THE
REPAYMENT  OF  THE  OUTSTANDING  BALANCE OF ANY AWARD, GRANT OR BUSINESS
INCENTIVE, OR OF ANY TAX CREDITS, INCLUDING  INTEREST  THEREON,  MAY  BE
DEFERRED  FOR  A  PERIOD  NOT TO EXCEED FIVE YEARS FROM THE DATE OF SUCH
WAIVER, PROVIDED THAT IF AT THE END OF FIVE  YEARS  THE  CONDITIONS  FOR
WHICH  THE WAIVER WAS GRANTED CONTINUE, THE AWARDING ENTITY MAY GRANT AN
ADDITIONAL WAIVER.
  5. EACH ENTITY OF THE STATE WHICH ENTERS INTO AGREEMENTS  PURSUANT  TO
THIS  CHAPTER  SHALL  ESTABLISH  RULES  AND  REGULATIONS RELATING TO THE
CONDUCT OF A HEARING AND THE TERMS AND CONDITIONS OF REPAYMENT.
  6. ANY RECIPIENT AGGRIEVED BY A DETERMINATION OF THE  AWARDING  ENTITY
MAY  SEEK REVIEW OF SUCH DETERMINATION PURSUANT TO ARTICLE SEVENTY-EIGHT
OF THE CIVIL PRACTICE LAW AND RULES.
  7. UNLESS THE AGREEMENT BETWEEN THE ENTITY AND THE RECIPIENT OTHERWISE
PROVIDES FOR A PENALTY OF INTEREST IN THE EVENT OF  NON-COMPLIANCE,  FOR
PURPOSES OF THIS SECTION, INTEREST CHARGED IN THE REPAYMENT OF AN AWARD,
GRANT  OR  BUSINESS INCENTIVE SHALL BE CALCULATED AT A RATE EQUAL TO THE
UNDERPAYMENT RATE SET BY THE COMMISSIONER OF TAXATION AND FINANCE PURSU-
ANT TO THE PROVISIONS OF SUBSECTION (E) OF SECTION ONE THOUSAND  NINETY-
SIX  OF  THE TAX LAW; AND SHALL BE CALCULATED FROM THE DATE OF DISBURSE-
MENT OF SUCH AWARD, GRANT OR BUSINESS INCENTIVE.
  8. THE PROVISIONS OF THIS SECTION SHALL NOT  BE  DEEMED  TO  ALTER  OR
ABRIDGE  ANY  RIGHT OR REMEDY EXISTING AT LAW OR EQUITY OTHERWISE AVAIL-
ABLE TO THE AWARDING ENTITY.
  9. ON OR BEFORE SEPTEMBER FIRST, TWO THOUSAND NINE, AND ANNUALLY THER-
EAFTER, THE STATE, ANY OF ITS POLITICAL SUBDIVISIONS, OR ANY DEPARTMENT,
BUREAU, BOARD, COMMISSION, AUTHORITY, OR ANY OTHER AGENCY OR  INSTRUMEN-
TALITY OF THE STATE OR ITS POLITICAL SUBDIVISIONS, OR ANY PUBLIC BENEFIT
CORPORATION  AS  DEFINED IN SUBDIVISION FOUR OF SECTION SIXTY-SIX OF THE
GENERAL CONSTRUCTION LAW, OR ANY MUNICIPAL  CORPORATION  AS  DEFINED  IN
SUBDIVISION  THREE  OF  SECTION THREE-A OF THE GENERAL MUNICIPAL LAW FOR
THE PURPOSES OF JOB TRAINING, JOB CREATION OR RETENTION, OR THE DEVELOP-
MENT OF ITS OPERATION WITHIN THE STATE, SHALL SUBMIT  A  REPORT  TO  THE
GOVERNOR,  THE  TEMPORARY  PRESIDENT  OF  THE SENATE, THE SPEAKER OF THE
ASSEMBLY, THE SENATE MINORITY LEADER, THE ASSEMBLY MINORITY  LEADER  AND
THE STATE COMPTROLLER ON THE RECOUPMENT OF FINANCIAL INCENTIVES PURSUANT
TO  THIS  SECTION. SUCH REPORT SHALL INCLUDE: A LISTING OF RECIPIENTS OF
AN AWARD, GRANT OR BUSINESS INCENTIVE WHO HAVE  FAILED  TO  EXECUTE  AND
COMPLETE THE TERMS OF A CONTRACT, AGREEMENT OR UNDERSTANDING; THE AMOUNT
AND TYPE OF AWARD, GRANT OR BUSINESS INCENTIVE; THE DETERMINATION OF THE
AWARDING  ENTITY  WITH  RESPECT  TO  SUCH FAILURE, INCLUDING THE REASONS
THEREFOR; THE STATUS OF REPAYMENT OF THE AWARD, GRANT OR BUSINESS INCEN-
TIVE BY THE RECIPIENT; ANY WAIVER  PROVIDED  FOR  THE  REPAYMENT  OF  AN
AWARD,  GRANT  OR  BUSINESS  INCENTIVE AND THE REASONS THEREFOR; AND ANY
RECOMMENDATIONS OF THE ENTITY WITH RESPECT TO THE RECOUPMENT  OF  FINAN-
CIAL INCENTIVES PURSUANT TO THIS SECTION.
  S  2.  This  act shall take effect immediately and shall apply only to
contracts, agreements and understandings entered into on or  after  such
date.