New York State Economic Development Council 2013 Basic Economic - - PowerPoint PPT Presentation

37 Offices in 18 Countries

New York State Economic Development Council 2013 Basic Economic Development Course Financial Packaging & Economic Development

Kenneth W. Bond Partner Squire Sanders (US) LLP

College of Nanoscale Science & Engineering Albany, New York June 25, 2013

2 Practice Focus

• Public Finance
• Real Estate

Education

• New York University,

LL.M., 1976

• University of California,

Hastings, J.D., 1972

• Johns Hopkins

University, B.A., 1969 Admissions

• New York;
• Florida (inactive);
• United States Supreme

Court;

• United States Tax Court;
• United States Court of

Appeals for the Second Circuit;

• United States District

Courts, Eastern and Southern Districts of New York

Kenneth W. Bond

Partner, New York T +1 212 872 9817 kenneth.bond@squiresanders.com

Kenneth W. Bond has nearly 40 years of experience as transaction counsel involving infrastructure and project finance including economic and industrial development, public utility, privatization of public facilities and public purpose facilities. He represents and advises public sector issuers, corporations and financial institutions in the areas of public funds and public debt management, public sector energy projects and policy, and the development

• f financial services products.
• Mr. Bond is a member of the firm’s public finance and financial services practices. He serves on the Executive

Committee of the Municipal Law Section of the New York State Bar Association. He is a member of the Council of the State and Local Government Law Section of the American Bar Association, having served as chair of the Public Finance Committee from 2006 to 2011. served The Municipal Forum of New York, Inc. as a governor since 1991 and as secretary from 1993 to 2010. He is a trustee of the Citizens Budget Commission and co‐chair of its Committee on State Fiscal Reform.

• Mr. Bond is an adjunct professor of state and local government finance law at Albany Law School and serves on the

advisory board of the Government Law Center of Albany Law School. He is a Fellow of the American College of Bond Counsel. He is an editor of State and Local Government Law in a Federal System (8th ed., Mandelker, et al, LEXUS/NEXIS). Languages: English, Spanish REPRESENTATIVE EXPERIENCE

• Serving as counsel to municipalities, school districts, district corporations and local public benefit corporations in

New York in the authorization and issuance of municipal securities and the management of public funds.

• Serving as counsel to financial institutions in the underwriting of municipal securities and the management of

public funds.

• Serving as counsel to not‐for‐profit and corporate borrowers in public finance transactions.
• Serving as counsel to municipalities in the issuance of public utility debt and public utility debt policy.

3

The Concept of Financial Assistance from an Industrial Development Agency (IDA)

• Economic Development as a Public Purpose is distinguished

from public purposes for which tax dollars are spent. Tax dollars are used for purposes which provide goods and services for the public to no particular private benefit (roads, schools, sewers etc.). Tax dollars may not be spent on private purposes (developer projects) but tax incentives may be granted where the private project accomplishes economic development, which is a public purpose, i.e. job creation and retention, eliminating blight, etc.

• State tax incentives – real property tax abatement (PILOTS),

sales tax exemption, abatement of mortgage recording tax, various forms of tax credits, non‐recourse financing (TIFs and PIFs), corporate income tax credits (Excelsior Jobs Program), new market tax credits financed by ESDC for job creation.

4

The Concept of Financial Assistance from an Industrial Development Agency (IDA) (Continued)

• TIFS and PIFS – tax increment financing is a non‐FF&C municipal

bond to finance economic development from special taxes in a designated area – like urban renewal. TIF is available to municipalities, and maybe school districts if amendments pass: enviro remediation projects, sales tax and assessment back‐up. PILOT increment financing shifts PILOT payments from taxing jurisdiction to debt service on other bonds under questionable state law authority. Recent §1.141‐15(k) Treasury Regs limit PILOT to generally acceptable taxes, not special charges like debt service.

5

The Concept of Financial Assistance from an Industrial Development Agency (IDA) (Continued)

• IDA, as a tax exempt entity, owns the project; IDAs do not lend
• money. Bonds and other debt of an IDA are sold to a bank or

underwriter (which lends money), the proceeds of which are used to finance the project. Payment of the IDA bonds is secured by project revenues, developer guarantees, and commercial forms of credit or liquidity enhancement (i.e. bank letter of credit [LOC]).

6

The Concept of Financial Assistance from an Industrial Development Agency (IDA) (Continued)

• Securing

financial assistance begins with submitting an application to the IDA then obtaining an inducement resolution from the IDA which qualifies project expenditures for reimbursement with tax‐exempt debt. The IDA staff, IDA counsel and IDA bond counsel are professionals who can assist in determining if your project is suitable for IDA financing.

7

Tax Increment Financing: An Economic Development Tool for Optimists

• What is Tax Increment Financing (TIF)?
• Economic Development Tool ‐ Tax Increment Financing (TIF) is a tool

to stimulate redevelopment and finance public improvements through a pledge of increased taxes that result when property is redeveloped to pay the costs of associated public investment

• TIF began in 1952 in California and has since spread throughout the

country

• 49 states and the District of Columbia have TIF enabling legislation
• Uses of TIF include a variety of costs and improvements pertaining to

public infrastructure, land acquisition, demolition, utilities and planning costs, and other improvements:

• Sewer expansion & repair, storm drainage, street construction &

expansion, water supply, park improvements, curbs and sidewalks, traffic control, street lighting, landscaping, environmental remediation, bridge construction & repair, parking structures, libraries, emergency services facilities, schools

• Projects include: mixed‐use, residential, commercial, industrial, retail

development projects and amenity creation

8

The Municipal Redevelopment Law

• Enacted in 1984 (L. 1984, c. 916) (the “Act”)
• Authorizes an incremental real property tax to pay debt service
• n municipal bonds which are revenue bonds, not general
• bligation bonds
• Bonds known generically as tax increment bonds (TIF bonds)
• TIF bonds authorized in 49 states; New York was late to the

game in 1984

• Art XVI (Taxation) of NYS Constitution amended to make

incremental tax not a real property tax subject to the faith an credit pledge of Art. 8, sec. 2 of the NYS Constitution

9

Purpose of TIF Bonds

• To alleviate blight, promote economic development, enhance social

well‐being

• Site clearance and assembly of unproductive land, removal of

deteriorated and unsafe buildings, installation of utilities (water, sewer, electric, etc.), streets and sidewalks, parking facilities, docks and flood control facilities, parks and playgrounds, “other public improvements integral to the redevelopment project”

• Similar to urban renewal purposes (GML Arts. 5 and 5‐A) but not

limited to urban areas

• TIF bond proceeds are used for “gap” or “wedge” financing – the last

piece of the capital stack

• Financing package for a large‐scale private sector project with public

purposes

• Examples: housing, shopping centers, arenas, hotels, office buildings,

mixed‐use

10

Process for Authorizing TIF Bonds

• Follows processes in urban renewal law – initiated by the municipality

with the developer

• First the governing board conducts a study of the feasibility of the

redevelopment project

• Subject to the increment tax – when it comes to the T.I. itself, are we

not actually just referring to the existing AV property taxes, not a new tax, just the bounce in the regular AV assessment from a bounce in value? If so, then perhaps replace “incremental tax” with “ad valorem taxes with prodeuce incremental tax receipts over the base value”

• The study must determine the “project area” – the parcels subject to

the incremental tax – similar to an urban renewal area

• The study must include SEQRA review
• After the study, the governing board drafts the “redevelopment plan”

– similar to an urban renewal plan

11

Process for Authorizing TIF Bonds (cont’d)

• The plan is submitted to the planning agency
• After planning agency approval, the governing board conducts a pubic

hearing

• After the hearing, the plan is approved (or not ) by the governing

board

• Subsequent steps begin to more specifically contemplate and approve

items directly related to debt issuance, including legal and disclosure (offering) documents

12

The Redevelopment Plan

• Legal description of the project area boundaries – should be greater

than project footprint and include benefited parcels subject to incremental tax

• Project diagram showing open space, proposed use of buildings,

property devoted to public purposes, etc. (i.e., parks, utilities)

• Statement of neighborhood impact from development, including

relocation

• Proposed method of financing to determine its economic feasibility,

including TIF bonds

• Proposed sale or lease of property to developer
• Statement of “adequate safeguards” to assure project completion

(but no requirement as to minimum wage, prevailing wage, etc.) – the debt markets will also govern here

13

2012 Amendments to the Act

• A school district may allocate a portion of its tax levy for debt service

payable on TIF bonds authorized and issued by a municipality

• Similar notion with “levy incremental taxes” – is it not the regular AV

property tax levy, not an incremental levy in a literal sense? If so, then could be addressed by simply replacing “levy” with “pledge”

• Authorizes school districts to levy incremental taxes to be pledged to

TIF bonds

• Makes clear that TIF bonds of the municipality are not indebtedness of

a school district

• Boards of education of a school district are required to undertake all

proceedings required by the governing body of a municipality to approve the redevelopment plan and TIF bonds

• Requires that the participation of a school district in a redevelopment

project be disclosed at a public hearing

• A joint redevelopment project with a school district must be located

within the municipality and one or more school districts

14

Structures of IDA Financing

• Basic Structure for Smaller Projects: Developer conveys the

project to the IDA; IDA sells or leases back the project to the developer; bank lends money to the IDA in a bond purchase agreement; bank secures its loan under the bond purchase agreement, an assignment of the lease or installment purchase agreement between the IDA and the development, an assignment of project revenues, and developer guarantees. Project and financial disclosure is limited to what bank would require in making a commercial loan.

Basic Structure for Smaller Projects

IDA Developer

Bank

Lease or ISA Deed & BOS

Bond Bond Purchase Agreement Assignment of Lease or ISA Mortgage and Security Agreement

Guaranty Taxing Jurisdiction Bank Customers

15

16

Structures of IDA Financing (Continued)

• Complex Structure for Larger Projects: Developer conveys the

project to the IDA; IDA sells or leases back the project to the developer; an underwriter offers to buy the IDA bonds to resell to investors through a bond purchase agreement between the underwriter and the IDA; the IDA’s obligation to repay its bonds is contained in a trust indenture between the IDA and a commercial bank or trust company with trust powers (the trustee) acting on behalf of the bond holders who the underwriter sold the bonds to (bond proceeds [until spent] and debt service payments on the bonds are held in trust by the trustee for the benefit of bond holders); trustee secures

17

Structures of IDA Financing (Continued)

repayment of the bonds under the trust indenture, an assignment of the lease or installment purchase agreement between the IDA and the developer, an assignment of project revenues, developer guarantees, and any LOC or other form of commercial credit or liquidity enhancement. Project and financial disclosure is mandatory for the underwriter under Federal securities laws and must conform to Federal rules as to timing and content of disclosure which place continuing

• bligations on the IDA and the developer. Material errors and
• mission in disclosure subject the IDA and the developer to

Federal securities law liability.

Complex Structure for Larger Projects

TIF Bonds Official Statement

Deed & BOS PILOT LOC Bank Bond Insurance IDA or Other Issuer TIF Bondholders IDA Developer Trustee Lease or ISA

Trust Indenture Mortgage & Security Agreement Assignment of Rents

Taxing Jurisdiction Bondholders Underwriter

Bond Purchase Agreement Bonds, Official Statement Bonds

18

19

Finding the Appropriate Financing for Your Project

• OPM (Other People’s Money) – Financing for a development

project comes in two forms: debt and equity. Equity can be your own money or OPM in the form of a loan or the purchase

• f stock or partnership interest. If you use your money and the

project is successful, you become rich. If you use OPM and the project is successful, investors become rich and you may lose control of your company. If you use your money and the project fails, you may become bankrupt. If you use OPM and the project fails, investors suffer a loss. OPM in the form of equity in risky or early stage projects is referred to as venture

• capital. Venture capital money is available if the project has a

probable high upside of success and is usually not available

• therwise. Venture capital is expensive because of the risk of

loss.

20

When Does IDA Financing Make Sense?

• Remember: IDAs only provide debt financing through lenders

(banks and underwriters). They do not make loans directly and they do not provide any form of equity. However, some IDAs have funds available for lending through a revolving loan program.

• Revolving Loan Funds – efficient use of IDA money; co‐lend

with bank to distribute risk; use LDC or LLC (under case law) formed by IDA or municipality as lender.

• Straight Lease Transactions – do the financing conventionally;

convey to IDA for elimination of state taxes and fees. Very common use of IDAs to provide financial assistance.

21

When Does IDA Financing Make Sense? (Continued)

• Start‐ups and financing under $1 million are difficult to do with

the IDA because the expenses involved with IDA financing are considerably more than obtaining a conventional bank loan. Further, all the credits available through Federal tax credits and Empire Zone (Excelsior Zone) credits may be useless if there is not taxable income against which tax credits can be applied. In a start‐up situation there may be net operating losses for tax purposes for several years while the project operates on working capital (usually a form of OPM) until the project reaches profitability.

22

When Does IDA Financing Make Sense? (Continued)

• Costs of IDA financing need to be compared to conventional

bank financing to determine if IDA financing makes sense. With a bank loan (after a credit check and the bank determines to make the loan) the costs are usually “points” (a percentage

• f the loan amount deducted from the net proceeds of the

loan), bank counsel fees, mortgage recording taxes and various adjustments (taxes, utility charges, etc.). With IDA financing, all the bank lending costs remain (except points may be reduced or eliminated) but there are cost additions and offsets which need to be compared.

23

When Does IDA Financing Make Sense? (Continued)

1. Cost increases include: (i) fees paid to the IDA, (ii) fees made to IDA bond counsel and other professionals involved in the deal, (iii) fees paid to the State of New York (if the loan is excess of $10 million), (iv) fees paid to counsel and others to prepare a payment in lieu of taxes agreement (PILOT). If the loan is obtained through a bank underwriting, costs include all the above plus (i) underwriter’s fees (which usually include the costs of underwriter’s counsel), (ii) preparing, printing and distributing an official statement to potential investors, (iii) preparation of certified financial statements for at least three prior years, (iv) financial feasibility studies about the likely success of the project, (v) opinions of various counsel required by the underwriter, and (vi) obtaining an LOC or similar liquidity

• r credit enhancement.

24

When Does IDA Financing Make Sense? (Continued)

2. Cost savings include: (i) elimination of the mortgage recording tax, (ii) elimination of state and local sales taxes for everything acquired to construct, reconstruct or equip the project, (iii) elimination or substantial reduction of real estate taxes for a number of years based on the IDA’s uniform tax exemption policy (usually a 50% reduction of real estate taxes in the first year of the loan reducing over up to 10 years) through a PILOT, and (iv) lower rate of interest than charged in a commercial loan if interest on the IDA bonds are exempt from federal income taxation.

25

Case Study – Start‐Up or Small Financing

• Joe Smith, and engineer employed at Ajax Engineering, in

Syracuse, has developed a formula for making propellers from plastic compounds which can be used in wind turbines. He has applied for patent and trademark protection. Joe has gone to his county IDA and acquired an option to purchase a parcel in an industrial park which has utilities installed and road access. The industrial park is near a major airport and Interstate

• highways. Joe has located a company in Denmark, Propellers
• f Denmark (PD), which makes and sells machines which

extrudes the plastic and forms the propellers.

26

Case Study – Start‐Up or Small Financing (Continued)

The cost of the machine is $1.36 million COD. To close on the parcel in the industrial park costs $40,000. The building to house the machine, store, pack and ship propellers, and provide parking for employees, costs $400,000. Joe estimates that he will need $200,000 in working capital to operate his propeller manufacturing business until it breaks even in 2‐3

• years. Joe is looking for $2 million of OMP. Joe owns his house

with $100,000 in equity. He has savings of $150,000 in bank CDs. Joe comes to the IDA for a $2 million loan. NOT GOING TO HAPPEN.

27

Case Study – Start‐Up or Small Financing (Continued)

• This deal is too small for an investment banker to spend its time
• n.

This deal is not financially strong enough to induce a commercial bank to make a loan. But here is how the deal can work: 1. Joe takes $40,000 of his savings and buys the parcel in the industrial park. Now Joe has a business asset he can leverage. 2. Joe goes to the IDA and gets induced for $2 million so he can refinance all his project costs with tax‐exempt bonds some day. He asks the IDA staff to scrub the sources for state and federal grants for small alternative energy projects. 3. Joe applies for loan from IDA revolving loan fund program.

28

Case Study – Start‐Up or Small Financing (Continued)

4. Joe scrubs the Internet for manufacturers of wind turbines and finds 4 which have plants in the U.S. He calls them and asks if they would buy his propellers. Two say yes, and one, Big Wind of Norway (BWN) offers to joint venture with Joe to build his propeller plant. BWN and Joe agree that BWN will put up $100,000 in equity, guaranty the purchase of the machine from PD (if Joe fails BWN can buy the machine and use it or resell it), and buy 1,000 propellers built to BWN’s specifications over two years. For this, BWN requires a 30% equity stake in Joe’s company and elects 30% of the directors on the board.

29

Case Study – Start‐Up or Small Financing (Continued)

5. Joe goes to his local bank and with the BWN agreement convinces the bank to lend him $300,000 to build the building secured by the parcel he owns (Joe uses the $100,000 in equity from BWN with the bank mortgage loan proceeds to build the building). 6. Joe negotiates a deal with PD to buy the machine through an installment purchase loan with the BWN guaranty. He borrows $50,000 in the equity in his house and uses the remaining $110,000 of his savings for a down payment to buy the machine. Meanwhile, the IDA obtains a $75,000 state grant for Joe which he uses for start‐up working capital.

30

Case Study – Start‐Up or Small Financing (Continued)

7. Joe now has the land, building and machine and a two‐ year sales agreement for his propellers plus $75,000 to start hiring employees and start‐up costs. Joe is broke but he has an

• perating business.

If his business produces propellers as specified after the first year, her can go back to the bank and get his $2 million loan through the IDA with tax‐exempt interest. As security for the loan, the bank will take a mortgage on the land, building, and machine (now appraised at $3 million including the value of Joe’s business), an assignment of the lease between the IDA and Joe, an assignment of company revenues from BWN, and a lien on company inventory. Joe will not have to pay a mortgage recording tax, sales tax on the machine, and receive a substantial reduction in real property taxes for several years. He may also benefit from Empire Zone credits which the IDA staff can administer.

31

The Challenge for Local Development Corporations (“LDC”)

1. NFPC which (i) provide health care and educational facilities (i.e., hospitals, nursing homes, private secondary schools, colleges and universities) and (ii) are qualified as IRC section 501(c)(3) corporations for federal tax purposes may finance projects on a tax‐exempt basis. 2. Since early 1990s the issuing authority has been the “civic facilities” provisions of the GML. But these provisions expired in 2008 and may never be revised leaving healthcare and educational facilities financing available only through DASNY. 3. LDC, as revenue bond agencies, assist local governments. Since they are public authorities they should function as “special fund” conduit issues in the absence of state legislation for special projects and benefited areas. 4. One solution to revising the “civic facilities” provisions without state legislation has been to use an “on behalf of” NFPC known as a local development corporation (“LDC”) under §1411 of the NFPC Law, created to “lessen the burdens of government.”

32

The Challenge for Local Development Corporations (“LDC”) (con’t)

5. With the LDC, the state tax benefits are provided by the IDA as in a straight lease transaction and the tax exempt financing under federal tax law is provided by the LDC. The LDC’s authority to issue tax‐exempt debt assumes the municipality which creates the LDC possesses economic development powers, which in turn raises state constitutional issues. 6. State Comptroller’s April, 2011 report on LDCs would prohibit “on behalf of” financing for local governments. 7. Griffiss LDC case in 3rd Dept (App Div) decided in June, 2011 treats LDCs as “public authorities” so they should be able to borrow and give funds

• n

behalf

• f

and to local

• governments. No effective mandate relief.

8. 2% tax cap is squeezing economic development appropriations and forcing infrastructure finance into Local Finance Law with debt limit requirements. Need to release pressure from the “squeeze” with LDC financing.

33

The State Economic Development Offer

• 2012 NYS budget includes 10 regional Economic Development

Councils under Lt. Gov. supervision and $130M to fund interesting regional projects.

• $2‐3 billion appropriated for SUNY campuses viewed as

economic development engines. Projects not clear but ideal situation would be: invent IT product at SUNY campus, manufacture it near SUNY campus and build factory, nearby support businesses and housing spring up.

• Special economic incentives where prisons closing.
• 2013 proposal – “tax free zones” (not enacted) – locate your

business on a SUNY campus and pay no taxes for 10 years.

• 2013 Budget:

limitations on IDAs: (i) no retail financial assistance unless tourism, sole source, or distress, (ii) required to “clawback” sales taxes if project fails and report requirements.

37 Offices in 18 Countries

New York State Economic Development Council 2013 Basic Economic Development Course Financial Packaging & Economic Development

Kenneth W. Bond Partner Squire Sanders (US) LLP Tel: 212.872.9817 Fax: 212.872.9815 Kenneth.bond@squiresanders.com

• Mr. Bond is a Partner in the international law firm of

Squire Sanders (US) LLP; Adjunct Professor in state and local government finance at Albany Law School; a member of the Executive Committee of the Municipal Law Section of the New York State Bar Association; a member of the Council of the Section of State and Local Government Law of the American Bar Association; and a fellow of the American College of Bond Counsel.