[Adopted by the Town Council 7-11-2023 by Ord. No. 2023.05.[1]]
[1]
Editor's Note: This ordinance also repealed former Art. IX,
Business Incentive Program, adopted 10-8-2013; amended in its entirety 9-25-2018.
The purpose of the East Hampton Tax Abatement Program is, in
accord with the Town's Plan of Conservation and Development (POCD),
to attract new businesses to the Town, promote the expansion of existing
businesses (including home-based businesses relocating into commercial,
industrial, and design development zones), and to encourage the rehabilitation
and reuse of vacant commercial and industrial buildings. It is the
intent of the Town:
A.
To assist in the creation of jobs for local residents;
B.
To create long-term tax base growth through the appropriate replacement,
reconstruction, expansion or remodeling of existing business facilities;
C.
To encourage the construction of new commercial and industrial facilities
in accord with the Future Land Use Plan found in the Town's POCD;
and
D.
To encourage substantial investment in new machinery, equipment,
and other personal property subject to taxation within the Town.
Subject to Connecticut General Statutes §§ 12-65b and 12-65h, the Town of East Hampton (the Town) shall, by affirmative vote of its legislative body, enter into a written agreement with any party owning or proposing to acquire an interest in real property, or an interest in real property upon which is located or proposed to be located: office use; retail use; manufacturing use; warehouse, storage or distribution use; structured multilevel parking use necessary in connection with a mass transit system; information technology; recreation facilities; transportation facilities; or mixed-use development as defined in Subdivision (72) of C.G.S. Sec. 12-81, fixing the assessment of the real property and all improvements to be constructed thereon which is the subject of the agreement in accordance with the provisions of § 278-40 of this article.
A.
The East Hampton Economic Development Commission ("EDC" or "the Commission")
shall provide any property owner or lessee with general information
concerning the East Hampton Tax Abatement Program (the "Program" or
"ETAP"), prepare and supply interested parties with an application
to participate in the Program and any other information that may be
reasonably requested by an interested party. An interested party is
one who owns or proposes to acquire an interest in real property as
defined in C.G.S. § 12-65b and who is considering construction,
replacement, reconstruction, expansion, or remodeling of existing
business facilities located or to be located in East Hampton.
B.
The EDC may perform research about any party applying to participate
in the Program and may request of any such party any relevant information
that in the opinion of the EDC bears upon consideration of the application.
The EDC shall obtain from the Tax Assessor an evaluation of the impact
of any proposed abatement of taxes on the applicable Grand List and
an estimate of the impact on future Grand Lists.
A.
Applications properly filed with the Town will be considered for
the Program, provided:
(1)
The applicant must possess a good environmental practices history
and be able to demonstrate adequate financial strength to finance
the proposed capital improvements and expansions to the real property
and machinery and equipment purchases that would be the subject of
the agreement.
(2)
The proposed use is located in an appropriate zone as defined by
East Hampton's Zoning Regulations.
(3)
The proposed use receives approvals, licenses, and permits of the
East Hampton Planning and Zoning Commission and of other East Hampton,
State of Connecticut and federal agencies, boards, commissions, and
officials having jurisdiction with respect to the project, as required.
(4)
No real estate property tax or other tax or fee or municipal charge
due East Hampton by the applicant, the businesses, or any other business
organization or entity owned or controlled by the applicant is unpaid
at the time the application is submitted or at any time thereafter.
(5)
If the applicant is relocating its business to East Hampton, the
applicant should provide a five-year history of tax assessments and
payments to the municipality or municipalities and/or other political
subdivisions in which its business was operated.
(6)
The project must have a clear economic benefit to East Hampton, as
described by the applicant on the application.
A.
Submission.
(1)
All tax abatement requests shall be made in writing on a form referred
to as ETAP application ("the application") published and provided
by the EDC and approved by the Town Council ("Council").
(2)
The application and all accompanying documentation shall be submitted
to the Office of the Clerk.
(3)
Upon receipt by the Clerk, one copy of the application and materials
shall be provided to the EDC for preliminary review.
(4)
The Clerk should provide notice to the Council that an application
has been submitted. "Receipt by the Clerk" signifies that an ETAP
application (including required signatures from listed public officials)
and all accompanying documentation required in accordance with all
applicable provisions of this article have been submitted.
(5)
The ETAP application form shall be evaluated annually by the Economic
Development Commission to ensure consistency with the POCD and this
article.
B.
Application evaluation by EDC.
(1)
The EDC will evaluate all ETAP application submissions according
to the guidelines in this article.
(2)
The EDC shall strive for expediency in processing and evaluating
the ETAP application submission. The EDC may request to meet with
the applicant or appropriate delegate. The Town Council may request
an accelerated evaluation process of a specific ETAP application if
the situation warrants.
(3)
The EDC shall prepare an ETAP application evaluation in response
to the ETAP application submission. When completed, the EDC shall
notify the Town Council that the ETAP application evaluation is ready
to be brought before the Council for consideration. This shall occur
only if the EDC has approved the application. The EDC is the authority
for nonacceptance of a business into the ETAP.
The East Hampton Assessor shall, in the Assessor's sole
discretion, determine the assessment of the real property or the personal
property and any and all improvements constructed or to be constructed
on or in the real property which is the subject of the agreement.
A.
The purpose of this article is to encourage economic growth in the Town that is in accord with the POCD in effect at the time of the given application. The POCD reflects the strongest expression of the Town's intentions for its future development, character, and quality of life. Accordingly, there is room for flexibility in evaluation of an application under criteria listed in § 278-39 of this article.
B.
Evaluation criteria defined in § 278-39 shall be evaluated annually by the Economic Development Commission to ensure consistency with the POCD and this article.
C.
When evaluating a new application for approval for the ETAP program,
the members of the EDC should strive for consistency and transparency.
Like applications should receive like treatment. It is appropriate
- even essential - for the EDC to consult the scoring of previously
granted applications when scoring a new application. Consistency between
like applications must be balanced, however, with the goals of the
POCD in effect at the time. Where no similar application has been
submitted, care should be taken to score the new application relative
to the goals of the POCD and relative to the merits of any previous
application.
D.
Only the EDC shall approve or deny an application for consideration
by the Council. The decision of the EDC is not appealable. When approving
or denying an application, the EDC should issue a written statement
showing the evaluation and explaining its reasoning. Projects recommended
to the Council must evince a clear net benefit to the Town. It is
recognized that evaluation of an application under this article requires
a blend of quantitative and qualitative reasoning; the Commission
shall strive to make its reasoning and methodology plain and clear.
ETAP application evaluation criteria shall include, but not
be limited to:
A.
Depending upon the number of points an application receives, it may
be denied or, subject to a vote by the Council, provided with one
of tiers of tax abatement as follows:
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Evaluation of Economic Benefit
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Basic ETAP Benefit
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Minimal economic benefit to the Town
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No tax abatement benefit
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Low economic benefit to the Town
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Year 1-2: 70% of fixed assessment abated;
or
Year 1-5: 50% of fixed assessment abated
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Average economic benefit to the Town
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Year 1-3: 70% of fixed assessment abated;
or
Year 1-5: 50% of fixed assessment abated
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High economic benefit to the Town
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Year 1-3: 100% of fixed assessment abated
Year 4-5: 70% of fixed assessment abated
Year 6: 50% of fixed assessment abated
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B.
The Town may abate real estate property taxes based on increased
real property tax assessments up to but not more than the percentages
shown above.
C.
The fixed assessment period shall commence the first fiscal year
for which a tax list is prepared on the October 1 immediately following
the issuance of a certificate of occupancy by the appropriate building
official for construction of the buildings or manufacturing facilities
or other structures and all improvements in or on the real property
which is the subject of the agreement. Notwithstanding anything written
in this article, the Town may, in its sole discretion, offer to enter
into an agreement with the applicant for the abatement of taxes of
a lesser percentage and/or fewer years.
D.
On a case-by-case basis, the Town may provide other incentives in
addition to the incentives provided by C.G.S. §§ 12-65b
and 12-65h or in lieu thereof as follows:
(1)
Waiver of building permit fees;
(2)
Waiver of filing fees with land use agencies; or,
(3)
Provision of in-kind services such as construction of access roads,
or road widening, construction of storm drains and culverts, sidewalks,
or curbing, extension of water and/or sewer lines or other public
improvements.
E.
Machinery and equipment defined in Subdivision (72) of C.G.S. Sec.
12-81 and intended to qualify for tax relief pursuant to C.G.S. § 12-65h
shall have for federal income tax purposes a depreciable useful life
of five or seven years.
F.
A company shall obtain a certificate of occupancy not later than
24 months from the date of the signed ETAP Form of Agreement. The
applicant's performance relative to acquisition of the certificate
of occupancy may be excused when the applicant is prevented from performing
by causes beyond the applicant's control, including natural disasters
or other calamities or a local, state or national declared state of
emergency. Application must be made within one year of receiving building
permits. Further, the Town Council is expressly authorized to consider
and/or implement extension of performance dates, assignment of multiple
performance dates for a single project where Certificates of occupancy
might be granted for various portions of a building or project at
differing time intervals and/or dates, and to identify and implement
other flexibility in the terms of any abatement granted within the
parameters of the applicable statutes.
G.
The Town Manager shall provide annual written updates in January
to the Council and the EDC on entities the Town has agreements with
under the East Hampton Tax Abatement Program that are presently in
effect or ended within the last year. The annual updates should include,
but need not be limited to:
(1)
A recap of the number of years and percentage of fixed assessment
abated for which the Town and the entity are under agreement.
(2)
When the fixed assessment abated started and when the tax abatement
will, or did, cease under the agreement for the entity.
(4)
Any notable achievements, recognitions or contributions that constitute
a net benefit to the Town - economically, civically, or in quality
of life.
(5)
If any benchmarks or requirements established by the agreement or under §§ 278-35, 278-40, and 278-41 have failed to be met: if yes, the annual update will include what benchmarks or requirements were failed to be met; also, what subsequent actions were taken by the Town regarding an applicant defaulting on the agreement or requirements of the ordinance.
A.
Abatement of taxes under this article constitutes a municipal subsidy
to the successful applicant. In the event that the applicant fails
to meet negotiated benchmarks or other requirements as described herein,
they shall, by the terms of the Agreement, be required to repay all
abated amounts, consistent with C.G.S. § 12-146 as of the
date of default.
B.
In addition to the specific timing benchmarks noted in § 278-40, the Town is encouraged to establish relevant benchmarks to be met by a successful applicant related to the nature of the business or the project. At a minimum they must include the following triggers.
(1)
In the event the owner or lessee of the real property: at any time fails to pay real estate and/or personal property taxes when due and payable; fails to commence or complete on time the construction of all improvements upon the property which is the subject of the agreement; within 10 years of the date of the agreement, the applicant becomes insolvent or bankrupt or files any debtor proceedings or others file such debtor proceedings against the owner or lessee, in any court, in any jurisdiction, state or federal, and does not withdraw such filing within 90 days or such other proceedings have not been dismissed or withdrawn by such other parties within 90 days or makes an assignment for the benefit of creditors or if the property or lease is taken under a writ of execution or becomes the subject of foreclosure proceedings; abandons at any time the real property or, in the case of the lessee, purports to assign its lease without the express consent of the Town as set forth in § 278-42 of this article; or fails to perform any obligation of owner or lessee or attain any benchmark set under the terms of the agreement; such event shall constitute a material default of the agreement, and the Town may terminate the agreement on the giving of written notice whereupon:
(a)
The right of the owner and/or lessee under the terms of the
agreement shall cease and come to an end; and
(b)
The property owner and/or lessee shall be obligated to repay
the Town the amounts of all tax abatements retroactive to the due
date of the first abated tax payment plus interest at the rate set
and payable pursuant to provisions of C.G.S. § 12-146, all
waived fees, if any, and all actual costs to the Town in providing
in-kind considerations to the property owner and/or the lessee.
(2)
In the event of failure to pay a tax when due and if such delinquency
continues for six months and one day, the Town shall terminate the
agreement whereupon (i) the right of the owner and/or lessee to receive
the tax abatement and any other considerations granted under the terms
of the agreement shall by terminated; and (ii) the property owner
and/or lessee shall be obligated to repay the Town the amounts of
all tax abatements retroactive to the due date of the first abated
tax payment plus interest at the rate set and payable pursuant to
provisions of C.G.S. § 12-146, all waived fees, if any,
and all actual costs to the Town in providing in-kind considerations
to the property owner and/or the lessee.
It is of no benefit to East Hampton to drive an applicant in default into further economic straits by virtue of an onerous repayment plan. Terms for the recapture of abated taxes as described in § 278-41 should be calculated to ensure the recapture of the highest possible percentage of public funds, taking into account the fiscal reality of the applicant, the circumstances of the default, and the state of the project.
The agreement between the Town and the applicant shall not be
assigned by the applicant to any person(s) or business organization
or entity or estate or trust without the express consent of both the
Council and the EDC which shall signify their consents by an affirmative
vote taken at a separate meeting of each body duly noticed for the
stated purpose. A conveyance of real property or a transfer of ownership
of the business or substantially all of the assets of the business
which is the subject of the agreement to a person or business organization
or entity that is not owned or controlled by the applicant shall not
constitute a valid assignment of the agreement or vest any rights
under the agreement in the grantee of the real property or transferee
of the business or of the assets of the business or allow for enforcement
of any obligations of the Town against the Town by the grantee or
transferee including but not limited to any remaining tax abatements
under the terms of the agreement. A "controlled entity" means a business
which is 80% or more owned by the grantor or transferor.
All references in this article to C.G.S. §§ 12-65b
or 12-65h or 12-81 or any other section of the Connecticut General
Statutes made herein shall include all amendments to such statutes
enacted and signed into law subsequent to the effective date of this
article.
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FORM OF AGREEMENT
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TOWN OF EAST HAMPTON
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AGREEMENT REGARDING REAL
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PROPERTY TAX ASSESSMENT
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______________________________
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EAST HAMPTON, CONNECTICUT
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This Agreement is entered into this ___ day of _____ by and
between the TOWN OF EAST HAMPTON, a municipal corporation and body
politic having its corporate limits located within the County of Middlesex
and State of Connecticut (hereinafter the "Town"), and ____________________
of East Hampton, Connecticut ("Company"), a Connecticut corporation
with a principal place of business at ______________________________,
East Hampton, Connecticut.
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WITNESSETH:
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WHEREAS, Company is responsible to pay all real property taxes
associated with the real property known as _________________ East
Hampton, Connecticut ("the Real Property"); and
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WHEREAS, Company intends to make improvements to the land and
structures on the Real Property, including the construction of approximately
_____ square feet of commercial office building and associated site
improvements located on the Real Property (the "Facility"); and
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WHEREAS, the estimated costs to be invested by Company in making
the above-described improvements to and constructing the Facility
on the Real Property will be a minimum of $__________; and
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WHEREAS, the Town, acting by and through its duly authorized
Tax Assessor, will assess and value the Real Property and personal
property on the Grand List of October 1, 2018.
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WHEREAS, the Town wishes to assist Company in its plans to add
real property and personal property value to the Town's tax base;
and
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WHEREAS, the Town wishes to assist Company to develop its __________________
plans to be submitted and approved to the Planning and Zoning Commission;
and
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WHEREAS, in consideration of the above, the Town is willing
to provide tax relief to Company pursuant to the East Hampton Business
Incentive Program Ordinance as a Tier ___ tax abatement for a period
of _____ years commencing with the first date that tax payments are
due under the Grand List following the date of issuance of the Certificate
of Occupancy for the Facility (the "Abatement Term"); and
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NOW, THEREFORE, in consideration of the foregoing, the parties
hereby covenant and agree that:
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1.
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Cost of Improvements: The costs for the improvements shall equal
or exceed $__________ in construction costs. Company will install
and properly account to the Town for all taxable personal property
assets added to or installed in the Facility.
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2.
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Certificate of Occupancy: Company will commence construction
within six months, and not prior, to this Agreement and complete construction
and obtain a Certificate of Occupancy not later than 24 months from
the date of this Agreement. Company shall actively operate or cause
said Facility to operate as __________ at the Real Property for not
less than the Abatement Term from the date of the Certificate of Occupancy.
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3.
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Employment: Company shall use its best efforts to employ or
cause to be employed at least ___ full-time and ___ part-time employees
at said Facility throughout the Abatement Term.
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4.
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Reduction of Assessment: Commencing with the issuance of a Certificate
of Occupancy, the Real Property tax assessment shall be established
on the Grand List for the period following the issuance of the Certificate
of Occupancy, and the Town shall grant to Company a ___% reduction
in its Real Property assessment such that the net effect of the reduced
assessment reduces the tax liability for the Real Property in the
amount of $________ over the _______ year period according to a schedule
attached hereto as Exhibit A, including the above-described Improvements
and the construction of the Facility (the "Abatement").
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5.
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Abatement Period: The Abatement Term shall be for a period of
_____ years commencing with the first date that tax payments are due
under the Grand List following the date of issuance of a Certificate
of Occupancy for the Facility; provided, however, that if such assessment
is changed by any future Town revaluation, the tax payments due under
the new assessed value of the Real Property shall be adjusted for
the remainder of the Abatement Term in accordance with the terms of
the Abatement set forth in Paragraph 4 above.
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6.
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Tax Payment: Company shall maintain all tax obligations owed
by it to the Town current and in good standing during the Abatement
Term.
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7.
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Certification of Value of Site Improvements: Company shall be
required to provide proof via affidavit of an appropriate officer
within one year after the commencement of operations at the Facility
as to a) the actual value of the site improvements and that said improvements
are substantially in conformance with the provisions hereof as to
the scope of construction; b) the cost of construction (a minimum
of $_____.00); and c) the number and type (full-time or part-time)
of employees employed at such Facility.
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8.
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Ongoing Employment Obligations: Notwithstanding anything herein
contained to the contrary, Company and the Town acknowledge and agree
that, while Company shall make every good-faith effort to maintain
and employ at least _____ full-time and _____ part-time employees
during the Operating Term, economic circumstances, financial considerations,
and employee transience may make it impossible to maintain precisely
the level of employment described herein. Accordingly, Company and
the Town acknowledge that variations in the numbers of employees will
occur and may continue for unspecified periods of time during the
Operating Term of this Agreement. Company will, upon request, disclose
to Town its employment statistics no more than once per year. Subject
to the above requirement of good faith and Company's cooperation in
disclosing all efforts made to comply with the employment parameters
stated herein, such variations shall not otherwise constitute a default
of this Agreement, provided the Facility is operating in accordance
with applicable law and Company is in compliance with the terms of
this Agreement in all other respects.
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9.
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Default: The following events shall constitute an event of default:
Company at any time fails pay real estate and/or personal property
taxes when due and payable; or Company fails to commence or complete
on time the construction of all improvements upon the property which
is the subject of the agreement; or Company, within 10 years of the
date of the Agreement, becomes insolvent or bankrupt or files any
debtor proceedings or others file such debtor proceedings against
the owner or lessee in any court, in any jurisdiction, state or federal,
and does not withdraw such filing within 90 days, or such other proceedings
have not been dismissed or withdrawn by such other parties within
90 days; or Company makes an assignment for the benefit of creditors;
or Company property or lease is taken under a writ of execution or
becomes the subject of foreclosure proceedings; or Company abandons
at any time the real property or in the case of the lessee purports
to assign its lease without the express consent of the Town as set
forth in this Ordinance; or Company fails to perform any obligation
of owner or lessee or attain any benchmark set under the terms of
this Agreement. In such event of default, the Town shall provide notice
to the Company of such event of default, and the Company shall have
30 days from such notice within which to cure such default. In the
event Company fails to cure the default with 30 days of such notice,
then this Agreement shall be null and void, and the Company shall
reimburse the Town for all tax relief provided to Company, retroactive
to the due date of the first abated tax payment, plus interest at
the rate set and payable pursuant to the provisions of Conn. Gen.
Stat. § 12-146, or other applicable statute, plus all prior
waived fees, if any, plus all actual costs to the Town in providing
in-kind considerations to the Company, and the Town shall be under
no obligation to grant further tax relief hereunder.
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10.
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Legal Action to Enforce the Terms: In the event that the Town
must resort to legal action to enforce the terms of this Agreement,
any amount determined by a Court of competent jurisdiction to be due
from Company shall be subject to interest at the rate of 18% per annum.
Such interest shall accrue from the postmark date for the notice of
default described in Paragraph 9. In addition, the Town shall be entitled
to recover from Company all costs of collection, including reasonable
attorneys' fees, incurred in enforcing this Agreement.
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11.
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No Further Abatement: Company acknowledges and agrees that the
Abatement offered pursuant to this Agreement is not binding upon the
Town and shall not continue, beyond the _____ year Abatement Term
agreed to herein.
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12.
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No Admission as to Values: Company and the Town acknowledge
and agree that the values placed upon the Real Property, the Facility,
and/or the Improvements as a result of the Abatement shall not now
or at any other time be construed as an admission by any party or
as evidence of any kind as to the true fair market value of the Real
Property, the Facility, and/or the Improvements.
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13.
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Notices: All notices hereunder are to be sent by the Town to
Company at the following address or to such other address as requested
by the Company or its successors or assigns: __________, East Hampton,
CT 06424 Attention: _____. All such notices shall be sent via certified
mail, return receipt requested, or overnight mail service. Notices
are deemed effective upon delivery. Any refusal to accept such delivery
shall still constitute the delivery of proper notice.
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14.
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Assignment: Company may not assign or otherwise transfer its
rights or obligations under this Agreement without the prior written
authorization of the Town Council and Economic Development Commission,
which shall signify their consents by an affirmative vote taken at
a separate meeting of each body duly noticed for the stated purpose.
A conveyance of the Real Property or a transfer of ownership of the
Company business or substantially all of the assets of the Company
to a person or business organization or entity that is not a "controlled
entity" which is owned or controlled by the Company shall not constitute
a valid assignment of the Agreement or vest any rights under the Agreement
in the grantee of the Real Property or transferee of the Company or
the assets of the Company or allow for enforcement of any obligations
of the Town against the Town by the grantee or transferee, including,
but not limited to, any remaining tax abatements under the terms of
the Agreement. A "controlled entity" means a business which is 80%
or more owned by the Company as grantor or transferor.
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15.
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Release of Liability: Company and/or its successors or assigns
releases the Town and its agents, servants and employees from any
and all liability, of whatever nature, legal or equitable, which may
have arisen or which may arise in connection with this Agreement,
including the implementation hereof.
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16.
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Indemnification: Company and/or its successors or assigns shall
defend and indemnify the Town and any of its agents, servants and
employees against any action, claim or suit of any nature whatsoever,
arising from the Town's being a party to this Agreement and/or any
undertaking of its obligations hereunder.
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17.
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Execution: This Agreement has been executed by the parties'
respective agents, duly authorized and acting in his or her official
capacity.
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18.
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Amendment: This Agreement may be amended only by mutual consent
of the parties, and any amendments to this Agreement shall be in writing
and shall be duly executed and dated by the respective parties.
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19.
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Complete Agreement: This Agreement represents the entire and
complete understanding and agreement of the parties, and any and all
prior written or oral agreements not otherwise contained in this Agreement
shall be and are hereby null and void and of no force or effect.
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20.
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Choice of Law and Venue: In the event that litigation or other
dispute resolution process arises, all litigation and dispute resolution
shall take place in the State of Connecticut, Judicial District of
Middlesex, and the Agreement shall be construed in accordance with
Connecticut law, without regard to its conflict of law provisions.
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21.
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Notice of Tax Abatement: Upon the execution of this Agreement,
a copy of this Agreement or a proper "Notice of Tax Abatement Agreement"
shall be filed upon the land records of the Town with respect to the
Real Property.
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22.
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Special Conditions: In addition to all other terms and conditions
of this Agreement, the Town's obligations under this Agreement are
conditioned on the following ("the Conditions"):
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(a)
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Project Financing: Company demonstrates to the reasonable satisfaction
of the East Hampton Finance Director that it has private financing
and state and federal grants in place in an amount sufficient to undertake
and complete the project;
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(b)
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Property Maintenance: Company demonstrates that it has maintenance
contracts in place to keep the property maintained during the period
of construction;
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(c)
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Non-Transferable: As set forth in Paragraph 14 herein, Company
acknowledges and affirms that this tax abatement is non-transferable
and any transfer of the tax abatement to a non-related entity shall
be an event of default; and
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(d)
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_____ [other specific terms]
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In the event that the Company fails to satisfy the Conditions
set forth in this Special Conditions paragraph, this Agreement shall
be null and void and the Real Property as improved shall be assessed
in accordance with the Connecticut General Statutes without regard
to the terms and conditions of this Agreement.
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SIGNATURES FOLLOW
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IN WITNESS WHEREOF, the parties hereto have hereunto set their
hands and seals as of the day and year first written above.
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Witnessed By:
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COMPANY:
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_____________________________________
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By: _____________________________
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Its CEO, Duly Authorized
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_____________________________________
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Witnessed By:
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TOWN OF EAST HAMPTON:
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_____________________________________
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By: _____________________________
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Its Town Manager, Duly Authorized
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_____________________________________
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