Sec. 4242.3. Eligible and ineligible projects

(a) Eligible projects.

ESD may provide assistance as set forth below to projects that involve the expansion of an eligible business within the State or the attraction of an eligible business to the State, and will create at least 300 new, permanent, full-time, private sector jobs; provided, however, that if and to the extent provided from time to time by section 16-h of the UDC Act or other applicable legislation, ESD may provide assistance to expansion and attraction projects that create fewer than 300 but at least 100, new, permanent, full-time, private sector jobs within the State. Private-sector businesses eligible for program assistance shall include industrial, manufacturing, warehousing and distribution, research and development, high technology, service and other non-retail commercial enterprises.

(1) New jobs shall include both:

(i) new hires within the State, whether at one or more locations within the State, that increase the total number of employees employed in the State by the business seeking program assistance; and

(ii) the relocation by a business seeking program assistance of jobs from outside the State to one or more locations within the State.

(2) Permanent, full-time jobs shall mean non-temporary jobs, reflected on the employer's payroll, of at least 35 hours per week and carrying with them the usual and customary fringe benefits extended by that employer to other employees with comparable rank and duties. Two jobs reflected on the employer's payroll for a combined minimum of 35 hours per week and that carry the usual and customary fringe benefits extended by that employer to other employees with comparable rank and duties shall qualify as one permanent, full-time job for the purposes of the program.

(3) Private sector jobs are jobs of an employer that is not an agency, instrumentality or subdivision of the Federal, State or any local government. Private sectors jobs shall include jobs of not-for-profit employers only to the extent that these jobs are created in connection with the expansion or attraction of a national or regional administrative headquarters facility within the State.

(4) To be eligible for program assistance, an expansion or attraction project must be reasonably expected to create the requisite number and type of jobs within three to five years from the completion of the project and/or disbursement of program funds. The number of new, permanent, full-time private sector jobs expected to be created and the time frame for creation (which generally will be three years from project completion and/or disbursement of ESD funds, but generally will not be more than five years from such date) shall be set forth in the application for program assistance and, if the project is approved for funding, in the authorization of the corporation. The corporation may also establish, in consultation with the applicant, a period of time after the job creation date during which these jobs must be maintained. If the project fails to create or maintain within the State the number of jobs within the time frames established therefor, the project shall be subject to penalty. Such penalties may include, in the case of a loan, the acceleration of the full remaining balance on the loan or an increased rate of interest payable on the remaining outstanding principal; in the case of a grant, the cancellation of the grant or the recoupment by the corporation of some or all of the grant amount; and in the case of a loan guarantee, the cancellation of the guarantee or the payment of a specified liquidated damage amount.

(b) Ineligible projects, recipients and uses.

Program assistance shall not be available for:

(1) Retail businesses, unless the project involves the expansion or attraction of a headquarters facility of a retail business. A retail business shall mean one which devotes 25 percent or more of its floor space or derives 25 percent or more of its gross revenue from the sale of goods to the ultimate consumer for personal or household consumption or the rendering of personal services to individuals.

(2) The construction or renovation of residential facilities.

(3) Casinos and other gambling institutions.

(4) Debt refinancing, provided that the provision by ESD of permanent financing to replace construction financing for an otherwise eligible project shall not be considered debt refinancing.

(5) The payment of tax delinquencies or employee benefit arrearages.

(6) Expenses incurred before the submission of an application for program assistance or the written acceptance of a letter issued by ESD offering such assistance.