N.Y. General Municipal Law § 859-a: Additional prerequisites to the provisions of financial assistance

§ 859-a. Additional prerequisites to the provisions of financial

assistance. Prior to providing any financial assistance of more than one

hundred thousand dollars to any project, the agency must comply with the

following prerequisites:

1. The agency must adopt a resolution describing the project and the

financial assistance that the agency is contemplating with respect to

such project. Such assistance shall be consistent with the uniform tax

exemption policy adopted by the agency pursuant to subdivision four of

section eight hundred seventy-four of this chapter, unless the agency

has followed the procedures for deviation from such policy specified in

paragraph (b) of such subdivision.

1-a. The agency shall deliver a copy of the resolution adopted

pursuant to subdivision one of this section by certified mail, return

receipt requested or an electronic correspondence with a read-receipt,

to the chief executive officer of each affected local taxing

jurisdiction. When the affected local taxing jurisdiction is a school

district, the agency shall deliver a copy of such resolution by

certified mail, return receipt requested or an electronic correspondence

with a read-receipt, to the district clerk and district superintendent

of each affected school district.

2. The agency must hold a public hearing with respect to the project

and the proposed financial assistance being contemplated by the agency.

Said public hearing shall be held in a city, town or village where the

project proposes to locate. At said public hearing, interested parties

shall be provided reasonable opportunity, both orally and in writing, to

present their views with respect to the project.

3. The agency must give at least ten days published notice of said

public hearing and shall, at the same time, provide notice of such

hearing to the chief executive officer of each affected tax jurisdiction

within which the project is located. The notice of hearing must state

the time and place of the hearing, contain a general, functional

description of the project, describe the prospective location of the

project, identify the initial owner, operator or manager of the project

and generally describe the financial assistance contemplated by the

agency with respect to the project.

4. Each agency shall develop a standard application form, which shall

be used by the agency to accept requests for financial assistance from

all individuals, firms, companies, developers or other entities or

organizations. The standard application form shall be submitted by or on

behalf of the applicant, and subscribed and affirmed under the penalties

of perjury by the applicant, or on behalf of the applicant by the chief

executive officer or such other individual that is duly authorized to

bind the applicant, as true, accurate and complete to the best of his or

her knowledge. The standard application form shall include the

following, and may include such other supplemental information as

determined to be necessary and appropriate by the agency, including

supporting documents and information provided by or on behalf of the

applicant:

(a) the name and address of the project applicant;

(b) a description of the proposed project for which financial

assistance is requested, including the type of project, proposed

location and purpose of the project;

(c) the amount and type of financial assistance being requested,

including the estimated value of each type of tax exemption sought to be

claimed by reason of agency involvement in the project;

(d) a statement that there is a likelihood that the project would not

be undertaken but for the financial assistance provided by the agency

or, if the project could be undertaken without financial assistance

provided by the agency, a statement indicating why the project should be

undertaken by the agency;

(e) an estimate of capital costs of the project, including all costs

of real property and equipment acquisition and building construction or

reconstruction, financed from private sector sources, an estimate of the

percentage of project costs financed from public sector sources, and an

estimate of both the amount to be invested by the applicant and the

amount to be borrowed to finance the project.

(f) the projected number of full time equivalent jobs that would be

retained and that would be created if the request for financial

assistance is granted, the projected timeframe for the creation of new

jobs, the estimated salary and fringe benefit averages or ranges for

categories of the jobs that would be retained or created if the request

for financial assistance is granted, and an estimate of the number of

residents of the economic development region as established pursuant to

section two hundred thirty of the economic development law or the labor

market area as defined by the agency, in which the project is located

that would fill such jobs. The labor market area defined by the agency

for this purpose may include no more than six contiguous counties in the

state, including the county in which the project is to be located;

(g) a statement to the effect that the provisions of subdivision one

of section eight hundred sixty-two of this chapter will not be violated

if financial assistance is provided for the proposed project;

(h) a statement that the owner, occupant or operator receiving

financial assistance is in substantial compliance with applicable local,

state and federal tax, worker protection and environmental laws, rules

and regulations; and

(i) a statement acknowledging that the submission of any knowingly

false or knowingly misleading information may lead to the immediate

termination of any financial assistance and the reimbursement of an

amount equal to all or part of any tax exemptions claimed by reason of

agency involvement in the project.

5. Each agency shall develop, and adopt by resolution, uniform

criteria for the evaluation and selection for each category of projects

for which financial assistance will be provided. At a minimum, the

criteria shall require that, for each project, the following must occur

prior to the approval of the provision of financial assistance:

(a) an assessment by the agency of all material information included

in connection with the application for financial assistance, as

necessary to afford a reasonable basis for the decision by the agency to

provide financial assistance for the project;

(b) a written cost-benefit analysis by the agency that identifies the

extent to which a project will create or retain permanent, private

sector jobs; the estimated value of any tax exemptions to be provided;

the amount of private sector investment generated or likely to be

generated by the proposed project; the contribution of the project to

the state's renewable energy goals and emission reduction targets as set

forth in the state energy plan adopted pursuant to section 6-104 of the

energy law; the likelihood of accomplishing the proposed project in a

timely fashion; and the extent to which the proposed project will

provide additional sources of revenue for municipalities and school

districts; and any other public benefits that might occur as a result of

the project;

(c) a statement by the applicant that the project, as of the date of

the application, is in substantial compliance with all provisions of

this article including, but not limited to, the provisions of this

section and subdivision one of section eight hundred sixty-two of this

chapter; and

(d) if the project involves the removal or abandonment of a facility

or plant within the state, notification by the agency to the chief

executive officer or officers of the municipality or municipalities in

which the facility or plant was located.

6. Each agency shall develop a uniform agency project agreement that

sets forth terms and conditions under which financial assistance shall

be provided. The uniform agency project agreement shall be used by the

agency and no financial assistance shall be provided in the absence of

the execution of such an agreement. The uniform agency project agreement

shall, at a minimum:

(a) describe the project and the financial assistance, including the

amount and type, to be provided, and the agency purpose to be achieved;

(b) require each project owner, occupant or operator receiving

financial benefits to provide annually a certified statement and

documentation: (i) enumerating the full time equivalent jobs retained

and the full time equivalent jobs created as a result of the financial

assistance, by category, including full time equivalent independent

contractors or employees of independent contractors that work at the

project location, and (ii) indicating that the salary and fringe benefit

averages or ranges for categories of jobs retained and jobs created that

was provided in the application is still accurate and if it is not still

accurate, providing a revised list of salary and fringe benefit averages

or ranges for categories of jobs retained and jobs created.

(c) indicate the dates when PILOT payments are to be made and provide

an estimate of the amounts for each affected tax jurisdiction of any

payments in lieu of taxes that are included as part of the transaction,

or formula or formulas by which those amounts may be calculated. In lieu

of providing such information, a copy of an executed payment in lieu of

tax agreement that contains the same information may be attached to the

uniform agency project agreement;

(e) provide for the suspension or discontinuance of financial

assistance, or for the modification of any payment in lieu of tax

agreement to require increased payments, in accordance with policies

developed by the agency pursuant to section eight hundred seventy-four

of this title;

(f) provide for the return of all or a part of the financial

assistance provided for the project, including all or part of the amount

of any tax exemptions, which shall be redistributed to the appropriate

affected tax jurisdiction, as provided for in policies developed by the

agency pursuant to section eight hundred seventy-four of this title,

unless agreed to otherwise by any local taxing jurisdiction or

jurisdictions; and

(g) provide that the owner, occupant or operator receiving financial

assistance shall certify, under penalty of perjury, that it is in

substantial compliance with all local, state and federal tax, worker

protection and environmental laws, rules and regulations.

7. Each agency shall establish a procedure for compliance with the

notification requirements, including identification of the notification

method, under subdivision one-a of this section and paragraph (b) of

subdivision four of section eight hundred seventy-four of this title.