NY State Senate Bill 2009-S2863

Senate Bill S2863

2009-2010 Legislative Session

Establishes the self-sufficiency program within the New York state urban development corporation act

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Archive: Last Bill Status - In Senate Committee Corporations, Authorities And Commissions Committee

Introduced
- In Committee Assembly
- In Committee Senate
- On Floor Calendar Assembly
- On Floor Calendar Senate
- Passed Assembly
- Passed Senate
Delivered to Governor
Signed By Governor

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	Assembly Actions - Lowercase Senate Actions - UPPERCASE
Jan 06, 2010	referred to corporations, authorities and commissions
Mar 04, 2009	referred to corporations, authorities and commissions

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2009-S2863 (ACTIVE) - Details

See Assembly Version of this Bill:: A5219
Current Committee:: Senate Corporations, Authorities And Commissions
Law Section:: New York State Urban Development Corporation Act
Laws Affected:: Add §16-u, UDCA
Versions Introduced in Other Legislative Sessions:: 2011-2012: A601
2013-2014: A393

2009-S2863 (ACTIVE) - Summary

Establishes the self-sufficiency program within the New York state urban development corporation act to promote economic development; defines terms; authorizes the urban development corporation to expedite the design, planning and construction of eligible projects; makes related provisions.

2009-S2863 (ACTIVE) - Sponsor Memo

                                 BILL NUMBER:  S2863

 TITLE OF BILL :
An act to amend the New York state urban development corporation act,
in relation to establishing the self-sufficiency program and to
authorize the urban development corporation to issue bonds or notes to
provide for such program; and providing for the repeal of certain
provisions of such act upon expiration thereof


 PURPOSE :
To authorize the Urban Development Corporation, d/b/a the Empire State
Development Corporation, to create the Self-Sufficiency Program,
financed by bonds backed by payments in lieu of taxes on new economic
development projects, to provide critical financing for large- scale
projects with no fiscal impact to the state or municipal governments.
The bill also streamlines project approvals at the local level to
ensure fair and expedited treatment of such projects while providing
considerable privately financed incentives to local governments.

 SUMMARY OF PROVISIONS :
Section 1 amends the UDC Act to create a new section which in turn
creates the Self-Sufficiency Program. The bill:

(a) defines certain terms for purposes of the bill, including an
"eligible project", "Eligible project" is defined to include any new

equipment, improvements or structures, including new construction,
alteration or improvement to existing structures which, (1) is
projected to cost a minimum of $20 million; (2) is projected to
create, in one or more phases, at least 300 new FTE jobs at the
project site; and (3) meet one or more of the following criteria: (a)
is constructed to achieve "gold" or higher LEED certification under
the Green Building Rating System is developed by the United States
Green Building Council, or (b) constructed to achieve "3 globes" or
higher certification under the Green Globes Rating System developed by
the Green Building Initiative or (c) will utilize technology-enabled
design construction and operation including, but not limited to
universal design principles. Jobs created in a phase, the construction
of which is in progress at the time of the application, shall count
towards the job creation number. UDC/ESDC is to give preference to
those eligible projects which (1) are located in an economically
distressed region or municipality or (2) are located, in whole or in
part, on a brownfield site as defined in the Environmental
Conservation Law.

(b) authorizes UDC/ESDC to undertake and finance an eligible project,
which includes taking jurisdiction, supervision and control of the
project, and that such project shall be exempt from all taxation as a
result.

(c) authorizes UDC/ESDC to accept applications and approve
applications within 30 days of receipt if the application demonstrates
that the application meets the standard of an eligible project and
will advance the economic well-being of the State. The section also
requires the applicant to pay a $1000 application fee and a closing
fee of 1% of the amount financed. In connection with the financing,
this section also requires the project sponsor to pay a one-time
Marketing Development Fee equal to 3% of the project costs to ESDC to
market New York and the Self-Sufficiency Program nationally and
worldwide, including the funding of an ombudsman program within the
corporation for the purpose of administering the program
expeditiously.

(d) requires ESDC to enter into a payment-in-lieu of taxes agreement
(PILOT) agreement with the project sponsor. Such PILOT agreement may
have a duration of up to 40 years. All PILOT payments are to be used
to pay project costs unless an agreement is concluded to make payment
to affected municipalities and school districts. If the sponsor agrees
to make the following payments as part of a PILOT agreement with
UDC/ESDC, then such agreement shall be deemed approved by the
municipalities:

(i) Base Payment: equal to the real property taxes paid to taxing
entities in the calendar year immediately preceding the year of the
effective date of the PILOT Agreement, increased by 4% each year. The
Base Payment is payable to the taxing entities in the same proportion
as existing real property taxes on the site are paid.

(ii) School District Contribution: one-time payment at closing of the
financing transaction equal to 3% of project costs, payable to the
school district or districts in which the project is sited.

(iii) Host Community Benefit: financing transaction equal to
municipalities.

one-time payment at closing of the 3% of project costs, payable to the
host

The PILOT payment also includes the Marketing Development Fee as well
as the Project Payment; the latter will be used by the project sponsor
to payor provide for the payment of project costs, including, among
others and without limitation, costs of fixtures, furniture and
equipment, refinancing of outstanding debt, and debt service on
PILOT-backed bonds, which can be issued by UDC/ESDC but not
exclusively.

(e) authorizes UDC/ESDC to issue bonds or notes backed by Project
Payments.

(f) describes the process for local review and approval of the project
application, which includes a 45-day notice and comment period for
local governments including school districts. Local governments may
approve or disapprove the application. Approval by the affected
municipality with zoning power means that for purposes of the local
zoning law, such use is a permissible use, subject only to site plan
approval (if such site plan approval is applicable to the project).
Upon disapproval, the project sponsor may (1) notify UDC/ESDC of its
intent to amend its application to change the project location to
another municipality or (2) withdraw the eligible project from further
consideration. Approval of the application by UDC/ESDC and the local
governments is exempt from the State Environmental Quality Review Act
(SEQRA) process, but the approvals do not give the project sponsor the
right to build the project. The overall project will be subject to the
requirements of SEQRA.

(g) provides for UDC/ESDC to take lead agency status for purposes of
the State Environmental Quality Review Act (SEQRA) if the project
sponsor so requests.

(h) requires UDC/ESDC to exercise the full extent of its powers to
facilitate and expedite the design, planning and construction of an
eligible project, including the creation of an ombudsman within the
corporation (to be funded by the Marketing Development Fee) to
facilitate the implementation and marketing of the Self-Sufficiency
Program.

(i) requires a third-party evaluation of the Self-Sufficiency Program
to be submitted to the Governor and Legislature by December 31, 2012.

Section 2 of the bill provides, in addition to immediate effect, that
applications for the program will sunset on November 26, 2019.

 JUSTIFICATION :
The continued stagnation and decline in the State economy has so far
proven resistant to repeated attempts to reverse it, and the need for
the economic stimulus provided by large-scale economic development
projects is vital given current events. The history of the State is
marked by trans formative public-private endeavors which harnessed the
creativity, skill and vision of the State's residents to improve their
economic condition, such as the Erie Canal. The Self-Sufficiency
Program creates a comprehensive one-stop program which finances
large-scale economic development projects of statewide significance,
expedites access to credit markets and streamlines local approvals,
while at the same time making local governments whole for existing tax
revenues and incentivizing their participation in future economic
development, all at no cost to state or local taxpayers.

 LEGISLATIVE HISTORY :
Similar to A.11747 of 2007-2008.

 FISCAL IMPLICATIONS :
To be determined.

 EFFECTIVE DATE :
On the same day and manner as a chapter of the laws of 2009.

2009-S2863 (ACTIVE) - Bill Text download pdf

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

                                  2863

                       2009-2010 Regular Sessions

                            I N  S E N A T E

                              March 4, 2009
                               ___________

Introduced  by  Sen. VALESKY -- read twice and ordered printed, and when
  printed to be committed to the Committee on Corporations,  Authorities
  and Commissions

AN ACT to amend the New York state urban development corporation act, in
  relation to establishing the self-sufficiency program and to authorize
  the  urban  development corporation to issue bonds or notes to provide
  for such program; and providing for the repeal of  certain  provisions
  of such act upon expiration thereof

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

  Section 1. Section 1 of chapter 174 of the laws of 1968,  constituting
the  New  York  state  urban  development corporation act, is amended by
adding a new section 16-u to read as follows:
  S 16-U. SELF-SUFFICIENCY PROGRAM. 1. IT IS HEREBY DECLARED THAT IT  IS
A  VITAL  POLICY AND PUBLIC PURPOSE OF NEW YORK STATE TO PROMOTE SIGNIF-
ICANT ECONOMIC DEVELOPMENT IN NEW YORK.  THE  HISTORY  OF  NEW  YORK  IS
MARKED BY LARGE-SCALE ECONOMIC ENDEAVORS WHICH HARNESSED THE CREATIVITY,
SKILL AND VISION OF THE RESIDENTS OF NEW YORK. THE TRANSFORMING POWER OF
THESE  ACCOMPLISHMENTS IS BEST EMBODIED IN THE ERIE CANAL, WHICH CREATED
IN ITS WAKE A SURGE OF ECONOMIC AND POPULATION GROWTH IN  NEW  YORK.  IN
CONTRAST, THE LEGISLATURE HEREBY FINDS THAT THE CURRENT ECONOMIC CLIMATE
OF NEW YORK AS A WHOLE IS MARKED BY PERSISTENT DISINVESTMENT, BLIGHT AND
AGING  INFRASTRUCTURE,  LOSS OF OPEN SPACE, AND EMIGRATION OF EMPLOYMENT
OPPORTUNITIES AND INVESTMENT DOLLARS, AND THAT RECREATING  THE  ENVIRON-
MENT OF ENERGY AND RISK-TAKING THAT DROVE THE ERIE CANAL IS ESSENTIAL TO
NEW  YORK'S  FUTURE  WELL-BEING.  THE LEGISLATURE FINDS THAT IN ORDER TO
REVERSE THE TRENDS OF DECLINE, IT IS NECESSARY AND APPROPRIATE TO ESTAB-
LISH A PUBLIC/PRIVATE FINANCING MODEL TO PROMOTE ECONOMIC DEVELOPMENT IN
NEW YORK WHILE MAXIMIZING LEVERAGE NEEDED TO ASSIST  IN  FINANCING  SUCH
PROJECTS  AND  DO SO IN AN EXPEDITED MANNER. IT IS THE OVERRIDING PUBLIC
POLICY OF THIS STATE TO CREATE A NEW VEHICLE FOR FINANCING AND APPROVING

 EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                      [ ] is old law to be omitted.
                                                           LBD07176-01-9

S. 2863                             2

PROJECTS IN NEW YORK TO ENSURE THE HEALTH, WELFARE AND PROSPERITY OF ALL
CITIZENS OF THE STATE,  WHILE  ENSURING  THAT  STATE  FINANCES  ARE  NOT
DEPLETED BUT IN FACT ENRICHED OVER THE LONG TERM.
  2.  AS  USED IN THIS SECTION, THE FOLLOWING TERMS SHALL HAVE THE MEAN-
INGS INDICATED:
  (A) "APPLICANT" SHALL MEAN THAT INDIVIDUAL OR ENTITY, OR SUCH INDIVID-
UAL'S OR ENTITY'S AGENT, SUCCESSOR IN INTEREST,  ASSIGNEE  OR  DESIGNEE,
WHICH  FILES AN APPLICATION WITH THE CORPORATION FOR CONSIDERATION OF AN
ELIGIBLE PROJECT.
  (B) "BASE PAYMENT" SHALL MEAN THAT PORTION OF  A  PILOT  PAYMENT  PAID
PURSUANT TO A PILOT AGREEMENT AS FOLLOWS: IN THE FIRST YEAR, SUCH AMOUNT
SHALL BE EQUAL TO THE REAL PROPERTY TAXES PAID TO THE TAXING ENTITIES IN
THE  IMMEDIATELY  PRECEDING YEAR AND IN THE SECOND YEAR AND IN EACH YEAR
THEREAFTER, THE AMOUNT REQUIRED TO BE PAID IN EACH SUBSEQUENT YEAR SHALL
BE ONE HUNDRED FOUR PERCENT OF THE IMMEDIATELY PRECEDING YEAR'S PAYMENT.
  (C) "BROWNFIELD SITE" SHALL HAVE THE  MEANING  SET  FORTH  IN  SECTION
27-1405 OF THE ENVIRONMENTAL CONSERVATION LAW.
  (D)  "ELIGIBLE  PROJECT"  SHALL MEAN ANY NEW EQUIPMENT, IMPROVEMENT OR
STRUCTURE, INCLUDING NEW  CONSTRUCTION,  ALTERATION  OR  IMPROVEMENT  TO
EXISTING STRUCTURES, AND ALL REAL AND PERSONAL PROPERTY DEEMED NECESSARY
THEREWITH,  WHICH  IS  PROJECTED TO (I) COST A MINIMUM OF TWENTY MILLION
DOLLARS, (II) RESULT IN THE CREATION, IN ONE OR MORE PHASES, OF AT LEAST
THREE HUNDRED NEW FULL TIME EQUIVALENT JOBS AT  THE  PROJECT  SITE;  AND
(III) ONE OR MORE OF THE FOLLOWING: (A) WILL BE DESIGNED AND CONSTRUCTED
TO  ACHIEVE "GOLD" STATUS OR HIGHER PURSUANT TO THE LEADERSHIP IN ENERGY
AND ENVIRONMENTAL DESIGN ("LEED") GREEN BUILDING RATING SYSTEM  CRITERIA
DEVELOPED  BY  THE  UNITED  STATES GREEN BUILDING COUNCIL OR (B) WILL BE
DESIGNED AND CONSTRUCTED TO "3 GLOBES" OR HIGHER PURSUANT TO  THE  GREEN
GLOBES  RATING SYSTEM DEVELOPED BY THE GREEN BUILDING INITIATIVE; OR (C)
WILL  UTILIZE  TECHNOLOGY-ENABLED  DESIGN,  CONSTRUCTION  AND  OPERATION
INCLUDING, BUT NOT LIMITED TO, GENERALLY ACCEPTED UNIVERSAL DESIGN PRIN-
CIPLES  THAT  ENHANCE THE FULL CYCLE USE BUILDINGS WITHOUT REGARD TO THE
PHYSICAL ABILITIES OR DISABILITIES OF OCCUPANTS OR GUESTS  IN  ORDER  TO
ACCOMMODATE A WIDE RANGE OF INDIVIDUAL PREFERENCES AND FUNCTIONAL ABILI-
TIES. IF A PHASE OF THE ELIGIBLE PROJECT IS UNDER CONSTRUCTION AS OF THE
DATE  OF THE APPLICATION, THEN ANY JOBS CREATED AS OF SUCH DATE SHALL BE
CONSIDERED JOBS CREATED FOR PURPOSES OF THIS DEFINITION.
  THE CORPORATION SHALL GIVE PREFERENCE TO THOSE ELIGIBLE PROJECTS WHICH
MEET EITHER OR BOTH OF THE FOLLOWING CRITERIA: (I) THE SITE  IS  LOCATED
IN  AN  AREA OF A MUNICIPALITY OR REGION CHARACTERIZED BY HIGH UNEMPLOY-
MENT, A HIGH POVERTY RATE AND/OR A HIGH COMMERCIAL VACANCY RATE; OR (II)
THE APPLICANT'S PROPOSED ELIGIBLE PROJECT WILL BE LOCATED, IN  WHOLE  OR
IN PART, ON A BROWNFIELD SITE AS DEFINED IN THIS SECTION.
  (E) "HOST COMMUNITY BENEFIT" SHALL BE AN AMOUNT EQUAL TO THREE PERCENT
OF  THE  PROJECT  COSTS,  PAYABLE AT THE CLOSING OF THE FINANCING OF THE
ELIGIBLE PROJECT, TO THE MUNICIPALITIES IN WHICH THE ELIGIBLE PROJECT IS
TO BE SITED, PROVIDED THAT IF AN ELIGIBLE PROJECT IS UNDERTAKEN  IN  ONE
OR  MORE  PHASES, SUCH AMOUNT SHALL BE PROPORTIONAL TO THE PERCENTAGE OF
PROJECT COSTS OF ELIGIBLE PROJECTS BEING UNDERTAKEN. THE HOST  COMMUNITY
BENEFIT  SHALL  BE  ALLOCATED  TO  THE MUNICIPALITY OR MUNICIPALITIES IN
WHICH THE ELIGIBLE PROJECT IS TO BE SITED IN THE SAME PROPORTION AS  THE
AMOUNT  OF  REAL  PROPERTY TAXES ON THE ELIGIBLE PROJECT WOULD HAVE BEEN
DISTRIBUTED TO SUCH MUNICIPALITIES IF NOT FOR THE TAX-EXEMPT  STATUS  OF
THE ELIGIBLE PROJECT.
  (F)  "MARKETING  DEVELOPMENT  FEE"  SHALL  BE AN AMOUNT EQUAL TO THREE
PERCENT OF THE PROJECT COSTS, IF AN ELIGIBLE PROJECT IS TO BE UNDERTAKEN

S. 2863                             3

IN ONE OR MORE PHASES, SUCH AMOUNT SHALL BE PROPORTIONAL TO THE PERCENT-
AGE OF THE PROJECT COSTS OF THE PARTICULAR PHASE TO THE PROJECT COSTS OF
THE ELIGIBLE PROJECT BEING UNDERTAKEN, FOR THE PURPOSE OF MARKETING THIS
PROGRAM BY THE CORPORATION.
  (G) "MUNICIPALITY" SHALL MEAN ANY COUNTY, CITY, VILLAGE OR TOWN IN THE
STATE.
  (H)  "PILOT AGREEMENT" SHALL MEAN AN AGREEMENT BETWEEN THE SPONSOR AND
THE CORPORATION TO MAKE PILOT PAYMENTS FOR AN ELIGIBLE PROJECT.
  (I) "PILOT PAYMENT" SHALL MEAN THAT SUM AGREED TO PURSUANT TO SUBDIVI-
SION FIVE OF THIS SECTION.
  (J) "PROJECT COSTS" SHALL MEAN AND INCLUDE ALL COSTS PAID OR  INCURRED
IN  CONNECTION  WITH  AN ELIGIBLE PROJECT INCLUDING, WITHOUT LIMITATION,
THE COSTS OF LAND AND OTHER INTERESTS, BUILDINGS,  FIXTURES,  FURNITURE,
EQUIPMENT  OR MACHINERY, RESEARCH AND DEVELOPMENT, PERMITTING, PLANNING,
ENGINEERING, FINANCING, THE PROVISION  OF  WORKING  CAPITAL,  INVENTORY,
MARKETING,  EXPENDITURES  ASSOCIATED  WITH  THE  OPENING OF THE ELIGIBLE
PROJECT, AND/OR OTHER AMOUNTS, INCLUDING RESERVES AND INTEREST, THE HOST
COMMUNITY BENEFIT, THE SCHOOL DISTRICT CONTRIBUTION  AND  THE  MARKETING
DEVELOPMENT  FEE REQUIRED TO BE PAID IN CONNECTION WITH FINANCING OF THE
ELIGIBLE PROJECT. THE TERM FINANCING SHALL INCLUDE REFINANCING.
  (K) "PROJECT PAYMENT" SHALL MEAN THAT PORTION OF A PILOT PAYMENT  PAID
ANNUALLY  PURSUANT  TO A PILOT AGREEMENT EQUAL TO THE AMOUNT ESTABLISHED
BY THE APPLICANT.
  (L) "SCHOOL DISTRICT CONTRIBUTION" SHALL MEAN THAT AMOUNT TO BE  PAID,
IF  AT  ALL,  IN  AN AMOUNT EQUAL TO THREE PERCENT OF THE PROJECT COSTS,
PAYABLE AT THE CLOSING OF THE FINANCING OF THE ELIGIBLE PROJECT, TO  THE
SCHOOL  DISTRICT  IN WHICH THE ELIGIBLE PROJECT IS SITED, PROVIDED THAT,
IF AN ELIGIBLE PROJECT IS TO BE UNDERTAKEN IN ONE OR MORE  PHASES,  SUCH
AMOUNT  SHALL  BE PROPORTIONAL TO THE PERCENTAGE OF THE PROJECT COSTS OF
THE PARTICULAR PHASE TO THE PROJECT COSTS OF THE ELIGIBLE PROJECT  BEING
UNDERTAKEN.
  (M) "SPONSOR" SHALL MEAN THE INDIVIDUAL OR ENTITY OR SUCH INDIVIDUAL'S
OR  ENTITY'S  AGENT,  ASSIGNEE,  DESIGNEE OR SUCCESSOR IN INTEREST WHOSE
APPLICATION FOR TREATMENT AS AN ELIGIBLE PROJECT HAS  BEEN  APPROVED  BY
THE CORPORATION.
  (N)   "TAXING  ENTITIES"  SHALL  MEAN  EACH  MUNICIPALITY  AND  SCHOOL
DISTRICT, IN WHICH AN ELIGIBLE PROJECT IS LOCATED, THAT HAS THE POWER TO
IMPOSE BUT WHICH WILL FAIL TO RECEIVE REAL PROPERTY TAX  PAYMENTS  WHICH
WOULD  OTHERWISE  BE DUE, EXCEPT FOR THE TAX EXEMPT STATUS OF THE CORPO-
RATION.
  (O) "UNDERTAKING" SHALL MEAN,  WITHOUT  LIMITATION,  THE  ACQUISITION,
FINANCING,  CONSTRUCTION,  INSTALLATION,  EQUIPPING AND COMPLETION OF AN
ELIGIBLE PROJECT IN ONE OR MORE PHASES.
  3. NOTWITHSTANDING ANY PROVISION OF LAW TO THE  CONTRARY,  THE  CORPO-
RATION IS HEREBY AUTHORIZED TO UNDERTAKE AN ELIGIBLE PROJECT PURSUANT TO
THIS  SECTION,  AND  THE  CORPORATION SHALL NOT BE REQUIRED TO PAY TAXES
UPON ANY OF THE PROPERTY ACQUIRED  BY  IT  OR  UNDER  ITS  JURISDICTION,
CONTROL  OR  SUPERVISION PURSUANT TO THIS SECTION OR UPON ITS ACTIVITIES
PURSUANT TO THIS SECTION.
  4. (A) THE  CORPORATION  IS  AUTHORIZED  TO  ACCEPT  APPLICATIONS  FOR
APPROVAL  OF  AN ELIGIBLE PROJECT, AND THE APPLICATION SHALL BE APPROVED
AS AN ELIGIBLE PROJECT AND A PROJECT AS DEFINED IN THIS SECTION  BY  THE
CORPORATION  IF SUCH APPLICATION DEMONSTRATES THAT THE PROJECT MEETS THE
DEFINITION OF AN ELIGIBLE PROJECT AND WILL ADVANCE THE ECONOMIC WELL-BE-
ING OF THE STATE. THE APPLICANT SHALL PAY TO THE CORPORATION  A  NON-RE-
FUNDABLE APPLICATION FEE OF ONE THOUSAND DOLLARS.  THE CORPORATION SHALL

S. 2863                             4

APPROVE OR DISAPPROVE OF SUCH ELIGIBLE PROJECT NO LATER THAN THIRTY DAYS
FROM THE DATE OF RECEIPT OF THE APPLICATION OR AT THE NEXT BOARD MEETING
OCCURRING  WITHIN  SIXTY  DAYS OF THE RECEIPT OF THE APPLICATION IF SUCH
MEETING  IS SCHEDULED FOR A DATE LATER THAN THIRTY DAYS FROM THE DATE OF
RECEIPT OF SUCH APPLICATION. SUCH APPROVAL SHALL NOT BE SUBJECT TO ARTI-
CLE 8 OF THE ENVIRONMENTAL CONSERVATION  LAW.  IN  CONNECTION  WITH  THE
UNDERTAKING  OF AN ELIGIBLE PROJECT BY THE CORPORATION OR A PHASE THERE-
OF, THE SPONSOR SHALL PAY TO THE CORPORATION,  AT  THE  CLOSING  OF  THE
FINANCING  BY  THE CORPORATION OR ITS DESIGNEE OF AN ELIGIBLE PROJECT, A
CLOSING FEE OF UP TO ONE PERCENT OF THE AMOUNT FINANCED. IN  CALCULATING
SUCH FEE, THE SPONSOR SHALL BE ENTITLED TO A CREDIT AGAINST SUCH FEE FOR
AMOUNTS  PAID  TO THE CORPORATION OR OTHER AUTHORITIES OR PUBLIC BENEFIT
CORPORATIONS AS FEES PAID PURSUANT TO OTHER PROGRAMS IN CONNECTION  WITH
OR  RELATED  TO  THE  ELIGIBLE  PROJECT, AS WELL AS ANY FEES PAID TO THE
STATE PURSUANT TO TITLE 10 OF ARTICLE 9 OF THE PUBLIC  AUTHORITIES  LAW.
THE  CORPORATION  SHALL PROMULGATE REGULATIONS WITHIN THIRTY DAYS OF THE
EFFECTIVE DATE OF THIS SECTION, OR AT THE NEXT REGULARLY SCHEDULED BOARD
MEETING OCCURRING WITHIN SIXTY  DAYS  OF  THE  EFFECTIVE  DATE  OF  THIS
SECTION,  IF  SUCH  MEETING  IS SCHEDULED FOR A DATE GREATER THAN THIRTY
DAYS FROM THE EFFECTIVE DATE OF THIS SECTION,  TO  ESTABLISH  PROCEDURES
FOR  THE  APPROVAL OF ELIGIBLE PROJECTS. IN CONSIDERING THE APPLICATION,
THE CORPORATION SHALL CONSIDER FACTORS AFFECTING THE CREDITWORTHINESS OF
THE APPLICANT INCLUDING, BUT NOT LIMITED TO,  THE  APPLICANT'S  BUSINESS
PLAN, BUSINESS EXPERIENCE AND MANAGEMENT INFORMATION, CREDIT HISTORY AND
FINANCIAL  STATEMENTS,  SUFFICIENCY OF COLLATERAL TO SECURE REPAYMENT OF
THE LOAN, OTHER PERSONAL AND CORPORATE GUARANTEES ON  THE  PROJECT,  AND
CASH  FLOW  PROJECTIONS. TO THE EXTENT PERMITTED BY LAW, ALL INFORMATION
REGARDING THE FINANCIAL CONDITION, MARKETING PLANS, MANUFACTURING  PROC-
ESSES,  PRODUCTION  COSTS,  CUSTOMER  LISTS,  OR  OTHER TRADE SECRETS OR
PROPRIETARY INFORMATION DEEMED AS SUCH BY THE  APPLICANT  IN  CONNECTION
WITH  THE  APPLICATION  SUBMITTED PURSUANT TO THIS SUBDIVISION, SHALL BE
CONFIDENTIAL AND EXEMPT FROM PUBLIC DISCLOSURE.
  (B) IN CONNECTION WITH THE UNDERTAKING OF AN ELIGIBLE PROJECT  BY  THE
CORPORATION,  A  SPONSOR  SHALL PAY THE MARKETING DEVELOPMENT FEE TO THE
CORPORATION OR ITS DESIGNEE. SUCH FEE CAN BE PAID BY THE SPONSOR AT  ANY
TIME, BUT IN ANY EVENT NO LATER THAN THE CLOSING OF THE FINANCING BY THE
CORPORATION  OR  ITS DESIGNEE OF AN ELIGIBLE PROJECT OR A PHASE THEREOF.
SUCH MARKETING DEVELOPMENT FEE SHALL BE USED BY THE  CORPORATION  AND/OR
THE  DEPARTMENT  OF ECONOMIC DEVELOPMENT TO PROMOTE BUSINESS DEVELOPMENT
IN THE  STATE  INCLUDING,  WITHOUT  LIMITATION,  THE  OMBUDSMAN  PROGRAM
DESCRIBED IN SUBDIVISION NINE OF THIS SECTION.
  5.  NOTWITHSTANDING  ANY  OTHER  PROVISION  OF LAW TO THE CONTRARY, IN
CONJUNCTION WITH THE ACQUISITION OF TITLE OR OTHER  INTEREST  SUFFICIENT
TO  CONFER  JURISDICTION, CONTROL OR SUPERVISION OF THE CORPORATION OVER
AN ELIGIBLE PROJECT, THE CORPORATION SHALL ENTER INTO A PILOT  AGREEMENT
WITH  THE  SPONSOR  OR  ITS DESIGNEE FOR A PERIOD OF FORTY YEARS OR SUCH
SHORTER TERM AS DETERMINED BY THE SPONSOR. SUBJECT TO  THE  APPROVAL  OF
THE  TAXING  ENTITIES,  THE  PILOT  PAYMENT SHALL BE USED TO PAY PROJECT
COSTS. HOWEVER,  IF  THE  SPONSOR  AGREES  THAT  THE  CORPORATION  SHALL
DISTRIBUTE  THE BASE PAYMENT, HOST COMMUNITY BENEFIT AND SCHOOL DISTRICT
CONTRIBUTION TO THE RESPECTIVE TAXING ENTITIES, THEN THE PILOT AGREEMENT
CONTAINING SUCH PROVISION SHALL BE DEEMED APPROVED BY THE  TAXING  ENTI-
TIES  AND  THE CORPORATION SHALL NOTIFY THE TAXING ENTITIES ACCORDINGLY.
PROJECT PAYMENTS SHALL BE PAID TO THE CORPORATION AND SHALL BE  USED  AS
DIRECTED  BY  THE  SPONSOR  TO  PAY OR TO PROVIDE FOR THE PAYMENT OF ANY
PROJECT COSTS. TO THE EXTENT ALL OR A PORTION OF  THE  PROJECT  PAYMENTS

S. 2863                             5

ARE  USED  TO PAY DEBT SERVICE ON BONDS OR NOTES ISSUED PURSUANT TO THIS
SECTION, SUCH PROJECT PAYMENTS SHALL BE IN  AMOUNTS  SUFFICIENT  TO  PAY
SUCH DEBT SERVICE.
  6.  NOTWITHSTANDING  THE  PROVISIONS  OF  SECTION  18 OF THIS ACT, THE
CORPORATION IS HEREBY AUTHORIZED, TO ISSUE  BONDS  OR  NOTES  WHICH  ARE
PAYABLE  FROM AND SECURED BY PROJECT PAYMENTS, ALLOCATED AND PAID PURSU-
ANT TO THE PROVISIONS OF SUBDIVISION FIVE OF THIS SECTION, IN  ORDER  TO
FINANCE  PROJECT COSTS. PROVIDED, HOWEVER, SUCH BONDS OR NOTES SHALL NOT
BE A DEBT OF THE CORPORATION, NOR SHALL SUCH BONDS AND NOTES BE  A  DEBT
OF  THE  STATE  WITHIN  THE  MEANING  OF ANY CONSTITUTIONAL OR STATUTORY
PROVISION. THE PLEDGE OF  PROJECT  PAYMENTS  ALLOCATED  AND  PAID  SHALL
CONSTITUTE A FIRST LIEN ON THE ELIGIBLE PROJECT AND THE REVENUES DERIVED
THEREFROM, AND SHALL BE SECURED BY THE ELIGIBLE PROJECT.
  7.  (A)  WITHIN  FIVE BUSINESS DAYS OF THE APPROVAL OF AN APPLICATION,
THE CORPORATION SHALL PROVIDE A WRITTEN NOTICE AND RECOMMENDATION TO THE
CHIEF EXECUTIVE OFFICER  OF  THE  MUNICIPALITY  IN  WHICH  THE  ELIGIBLE
PROJECT  IS  TO BE SITED WHICH REGULATES LAND USE PURSUANT TO THE ZONING
POWER.  SUCH NOTICE SHALL CONTAIN A  SUMMARY  OF  THE  ELIGIBLE  PROJECT
INCLUDING  BUT NOT LIMITED TO A DESCRIPTION OF THE FINANCIAL BENEFITS OF
THE ELIGIBLE PROJECT TO THE MUNICIPALITY, SCHOOL DISTRICT,  AND  REGION,
AND  IF  THE  ELIGIBLE PROJECT IS A PERMISSIBLE USE UNDER THE APPLICABLE
ZONING LAW.
  (B) THE CHIEF EXECUTIVE OFFICER  OF  THE  MUNICIPALITY  IN  WHICH  THE
ELIGIBLE PROJECT IS TO BE SITED WHICH REGULATES LAND USE PURSUANT TO THE
ZONING  POWER  IN  CONJUNCTION WITH THE LEGISLATIVE BODY OF SUCH MUNICI-
PALITY SHALL CONDUCT A PUBLIC HEARING IN RELATION THERETO, AT WHICH  THE
PUBLIC  SHALL  HAVE  AN  OPPORTUNITY  TO BE HEARD. NOTICE OF THE HEARING
SHALL BE POSTED IN AT LEAST FOUR PROMINENT PLACES AND SHALL BE PUBLISHED
NOT LESS THAN ONCE A WEEK FOR THREE SUCCESSIVE WEEKS PRIOR TO THE  HEAR-
ING  IN  A  NEWSPAPER  OF GENERAL CIRCULATION IN SUCH MUNICIPALITY.  THE
NOTICE OF HEARING SHALL INCLUDE SUCH NOTICE AS PROVIDED  BY  THE  CORPO-
RATION  TO  THE CHIEF EXECUTIVE OFFICER OF THE MUNICIPALITY IN WHICH THE
ELIGIBLE PROJECT IS TO BE SITED WHICH REGULATES LAND USE PURSUANT TO THE
ZONING POWER.  A COPY OF THE NOTICE SHALL BE MAILED TO  THE  LAST  KNOWN
OWNER  OF EACH PARCEL OF LAND ADJOINING THE ELIGIBLE PROJECT.  A COPY OF
THE NOTICE SHALL ALSO BE MAILED TO THE LEGISLATIVE BODY OF EACH  OF  THE
TAXING ENTITIES.
  (C) ANY AND ALL PERSONS MAY APPEAR BEFORE THE LEGISLATIVE BODY AT SUCH
PUBLIC  HEARING AND SHOW CAUSE WHY THE ELIGIBLE PROJECT SHOULD OR SHOULD
NOT BE ADOPTED. AT ANY TIME NOT LATER THAN  THE  HOUR  SET  FOR  HEARING
OBJECTIONS  TO  THE  PROPOSED  ELIGIBLE  PROJECT, ANY PERSON MAY FILE IN
WRITING WITH THE CLERK OF THE  LEGISLATIVE  BODY  A  STATEMENT  OF  SUCH
PERSON'S OBJECTIONS TO THE ELIGIBLE PROJECT.
  (D) WITHIN THIRTY DAYS OF THE DATE OF THE NOTICE PROVIDED IN PARAGRAPH
(A)  OF THIS SUBDIVISION, THE LOCAL SCHOOL DISTRICT SHALL ISSUE A STATE-
MENT TO THE LEGISLATIVE BODY RECOMMENDING  APPROVAL  OR  DISAPPROVAL  OF
SUCH  ELIGIBLE  PROJECT.  THE LOCAL SCHOOL DISTRICT SHALL ONLY RECOMMEND
DISAPPROVAL OF A PROJECT WHICH, CONSIDERED IN ITS ENTIRETY,  IT  REASON-
ABLY DEMONSTRATES WILL  MATERIALLY ADVERSELY IMPACT THE FISCAL INTEGRITY
OF  THE  SCHOOL  DISTRICT.  SUCH  STATEMENT  SHALL BE TRANSMITTED TO THE
LEGISLATIVE BODY OF SUCH MUNICIPALITY AND SHALL  BE  POSTED  FOR  PUBLIC
VIEWING.  SUCH  STATEMENT SHALL NOT BE SUBJECT TO ARTICLE 8 OF THE ENVI-
RONMENTAL CONSERVATION LAW.
  (E) WITHIN FORTY-FIVE DAYS OF THE DATE OF THE NOTICE PROVIDED IN PARA-
GRAPH (A) OF THIS SUBDIVISION, THE LEGISLATIVE BODY OF SUCH MUNICIPALITY
MAY APPROVE OR DISAPPROVE OF THE ELIGIBLE PROJECT. IF, WITHIN SUCH PERI-

S. 2863                             6

OD, THE LEGISLATIVE BODY OF  SUCH  MUNICIPALITY  APPROVES  OR  FAILS  TO
DISAPPROVE  SUCH  PROJECT, THEN, NOTWITHSTANDING ANY PROVISION OF LAW TO
THE CONTRARY, SUCH ELIGIBLE PROJECT SHALL BE DEEMED  A  PERMISSIBLE  USE
UNDER  THE  APPLICABLE ZONING LAW, SUBJECT ONLY TO THE SPONSOR OBTAINING
SITE PLAN APPROVAL FROM THE BODY  OF  SAID  MUNICIPALITY  AUTHORIZED  TO
GRANT  SUCH  APPROVAL,  EXCEPT  THAT  IF  THE  LOCAL ZONING LAW DOES NOT
REQUIRE SITE PLAN APPROVAL FOR SUCH USE,  THEN  NO  SITE  PLAN  APPROVAL
SHALL BE REQUIRED. IN THE EVENT SUCH LEGISLATIVE BODY DISAPPROVES OF THE
PROPOSED  USE,  THE  SPONSOR MAY, WITHIN TEN DAYS OF ITS RECEIPT OF SUCH
DISAPPROVAL (I) NOTIFY THE CORPORATION OF ITS INTENT TO AMEND ITS APPLI-
CATION TO CHANGE THE SITUS OF THE ELIGIBLE PROJECT TO ANOTHER CITY, TOWN
OR VILLAGE OF THE STATE AND PROMPTLY FILE NOTICE WITH SAID CITY, TOWN OR
VILLAGE PURSUANT TO THIS SECTION; OR (II) WITHDRAW THE ELIGIBLE  PROJECT
FROM  FURTHER  ACTION  BY THE CORPORATION WITHOUT PENALTY. SUCH APPROVAL
SHALL NOT BE SUBJECT TO ARTICLE 8 OF THE ENVIRONMENTAL CONSERVATION LAW.
  8.  NOTWITHSTANDING ANY PROVISION OF LAW TO  THE  CONTRARY,  FOR  EACH
ELIGIBLE  PROJECT,  UPON WRITTEN REQUEST OF THE SPONSOR, THE CORPORATION
SHALL BE THE LEAD AGENCY (AS THAT TERM IS DEFINED IN SECTION  8-0111  OF
THE  ENVIRONMENTAL  CONSERVATION  LAW)  FOR PURPOSES OF COMPLIANCE UNDER
ARTICLE 8 OF THE ENVIRONMENTAL CONSERVATION LAW.
  9. THE CORPORATION SHALL EXERCISE THE FULL  EXTENT  OF  ITS  CORPORATE
POWERS  SUBJECT  TO  APPLICABLE LAW TO EXPEDITE THE DESIGN, PLANNING AND
CONSTRUCTION OF ELIGIBLE PROJECTS, AND SHALL USE  ITS  BEST  EFFORTS  IN
SECURING  THOSE  APPROVALS NECESSARY TO COMPLETE AN ELIGIBLE PROJECT. AS
PART OF THIS EXERCISE, THE CORPORATION SHALL  APPOINT  AN  OMBUDSMAN  TO
FACILITATE  THE  IMPLEMENTATION  AND  MARKETING  OF THE SELF-SUFFICIENCY
PROGRAM DESCRIBED IN THIS SECTION AND THE EMPIRE REVOLVING  BRIDGE  LOAN
FUND DESCRIBED IN SECTION 16-T OF THIS ACT, AS ADDED BY A CHAPTER OF THE
LAWS OF 2009.
  10.  AN ENTITY INDEPENDENT OF THE CORPORATION SHALL CONDUCT AND SUBMIT
TO THE GOVERNOR AND THE LEGISLATURE BY NO LATER THAN DECEMBER 31,  2013,
A  COMPREHENSIVE  EVALUATION OF THE PERFORMANCE OF THE ELIGIBLE PROJECTS
APPROVED PURSUANT TO THIS PROGRAM. THE CRITERIA BY WHICH THE PROGRAM  IS
TO BE EVALUATED SHALL INCLUDE, BUT NOT BE LIMITED TO, THE FOLLOWING: (A)
WHETHER  QUANTIFIABLE  BENEFITS  ATTRIBUTABLE TO THE PROGRAM JUSTIFY ITS
DIRECT COSTS TO THE STATE AND PARTICIPATING LOCALITIES; (B) WHETHER  THE
PROGRAM  HAS  CONTRIBUTED TO THE ECONOMIC REVITALIZATION OF THE STATE BY
STIMULATING (I) THE CREATION  AND  RETENTION  OF  PERMANENT,  FULL-TIME,
QUALITY  PRIVATE SECTOR JOBS; AND (II) THE CREATION, LOCATION AND EXPAN-
SION OF BUSINESSES IN THE STATE; (C) WHETHER  THE  PROGRAM  HAS  CREATED
EMPLOYMENT  AND  BUSINESS DEVELOPMENT OPPORTUNITIES FOR RESIDENTS OF THE
STATE; AND (D) WHETHER THE PROGRAM IS BEING MANAGED AND EVALUATED EFFEC-
TIVELY BY THE CORPORATION.
  S 2. This act shall take effect on the  same  date  and  in  the  same
manner  as  a chapter of the laws of 2009, entitled "AN ACT to amend the
New York state urban development corporation act, in relation to  estab-
lishing  the  empire revolving bridge loan fund, and authorizing the New
York state urban development corporation to  issue  bonds  or  notes  to
provide  monies  for  such fund; and to amend chapter 393 of the laws of
1994, amending the New York  state  urban  development  corporation  act
relating  to  the  powers of the New York state urban development corpo-
ration to make loans, in relation to the effectiveness  thereof",  takes
effect, provided, that paragraph (a) of subdivision 4 of section 16-u of
the  New  York  state  urban  development  corporation  act, as added by
section one of this act, shall expire and be  deemed  repealed  November
26, 2019.

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Senate Bill S2863

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Sponsored By

David J. Valesky