S T A T E   O F   N E W   Y O R K
 ________________________________________________________________________
 
                                    184
 
                        2021-2022 Regular Sessions
 
                             I N  S E N A T E
 
                                (PREFILED)
 
                              January 6, 2021
                                ___________
 
 Introduced  by  Sen.  KAPLAN -- read twice and ordered printed, and when
   printed to be committed to the Committee on Finance
 
 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:
   §  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.
              

                                                            LBD00614-01-1

 S. 184                              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-

 S. 184                              3
 
 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 TWENTY-ONE, AND ANNUALLY
 THEREAFTER, THE STATE, ANY OF ITS POLITICAL SUBDIVISIONS, OR ANY DEPART-
 MENT, 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 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 RECIP-
 IENTS  OF  AN  AWARD,  GRANT  OR  BUSINESS  INCENTIVE WHO HAVE FAILED TO
 EXECUTE AND COMPLETE THE TERMS OF A CONTRACT, AGREEMENT  OR  UNDERSTAND-
 ING;  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 INCENTIVE 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 FINANCIAL INCENTIVES PURSUANT TO THIS SECTION.
   §  2.  This  act shall take effect immediately and shall apply only to
 contracts, agreements and understandings entered into on or  after  such
 date.