N.Y. Comp. Codes R. & Regs. tit. 21 § 4230.2

Current through Register Vol. 46, No. 50, December 11, 2024

Section 4230.2 - Definitions

(a) Administering corporation.

(1) The term administering corporation shall mean a not-for-profit corporation made up of a representative group of the following types of entities:

(i) an economic development zone capital corporation established pursuant to section 964 of article 18-B of the General Municipal Law; or

(ii) an industrial development agency or community-based local development corporation that:

(a) serves a municipality in which an economic development zone is located; and

(b) was established for the primary purpose of assisting minority and/or women- owned business enterprises located or to be located in such economic development zone; or

(iii) a local or community development corporation, industrial development agency or other not-for-profit corporation that provides services to community businesses, and has as one of its primary purposes the provision of services and assistance to minority and women-owned business enterprises.

(2) A not-for-profit corporation shall be deemed to be "made up of a representative group of the following types of entities" if the corporation is one of the entities listed above, and has letters of agreement to participate in the administration of a minority and women revolving loan trust fund account from one or more of the types of entities listed above.

(3) An entity shall be deemed to have been "established for the primary purpose of assisting minority and/or women-owned business enterprise" or shall be considered to have "as one of its primary purposes the provision of services and assistance to minority and women-owned business enterprises" if it can establish that it has provided financing or technical assistance to minority or women-owned business enterprises, or caused financing or technical assistance to be provided to such enterprises.

(4) Local and community development corporations, industrial development agencies, and other not-for-profit entities shall be deemed to be "representative of the community" if:

(i) their proposal to administer a minority and women revolving loan trust fund account includes letters of support from chambers of commerce, industry trade associations, banks, community based organizations, and similar entities in their service delivery region; or

(ii) members of their boards of directors have a record of participating in community affairs in the service delivery region.

(b) Administrative costs shall mean the costs incurred by an administering corporation in preparing to administer and in the administering the Trust Fund Lending Program, including, without limitation, the costs of:

(1) preparing and printing marketing material;

(2) preparing press releases and other promotional material;

(3) developing and printing application forms;

(4) professional development and review of standard form loan documents;

(5) salaries and benefits of employees;

(6) office supplies and equipment; and

(7) expenses reasonably incurred in connection with the processing of any trust fund loan hereunder and for which reimbursement is not sought or obtained from a trust fund applicant or borrower pursuant to section 4230.6(j) of this Part.

(c) Administrative expense trust fund account shall mean each and every account established by the corporation for the benefit of an administering corporation pursuant to section 4230.6(c) of this Part.

(d) Administrative income shall mean income derived by an administering corporation from:

(1) interest earned by the administering corporation from holding on account funds disbursed by the corporation from an administrative expense trust fund account;

(2) the collection from trust fund loan application of application fees, commitment fees and payments made to reimburse the administering corporation for expenses incurred in connection with the processing of applications for trust fund loans and the closing of trust fund loans; and

(3) any other sources, provided such income is expended on administrative costs.

(e) Affirmative action program shall mean a program developed by the affirmative action department of the corporation establishing goals for the participation of minority persons and women in business and employment opportunities for any project receiving financial assistance from the program.

(f) Appropriating legislation shall mean chapter 54, section 1 of the Laws of 1993, together with all subsequent legislation appropriating or reappropriating funds for the program.

(g) Beneficiary means a recipient of program assistance as set forth in section 4230.3 of this Part.

(h) Business development loan shall mean a loan for the purposes described in, and meeting the criteria enumerated in section 4230.8 of this Part.

(i) Business development loan guaranty shall have the meaning assigned to such term in section 4230.10 of this Part.

(j) Business development services shall have the meaning assigned to such term in section 4230.11(b) of this Part.

(k) Certification shall mean the official determination of a business enterprise as a bona fide minority and/or women-owned business enterprise.

(l) Certified government contractor shall mean a certified minority and/or women-owned business enterprise that has a government contract(s).

(m) Certified minority and/or women-owned business enterprise shall mean a minority and/or women-owned business enterprise that has obtained certification or has had its application for certification rejected, on the ground that such enterprise is a start up business and is ineligible for certification until such time as it can document business activity and operational control as a minority and/or women-owned business enterprise, as set forth in section 4230.3(b) of this Part.

(n) Certifying agency shall mean a New York State agency, department, public benefit corporation or public authority, or other governmental or quasi-governmental agency that is:

(1) designated by the State certification director to administer certification in the State; and

(2) recognized by the UDC affirmative action department as an acceptable certifying entity.

(o) Contractor development assistance shall mean comprehensive assistance provided by the corporation to help certified government contractors and eligible government contractors, as set forth in section 4230.7 of this Part.

(p) Corporation or UDC shall mean the New York State Urban Development Corporation, a public benefit corporation created by chapter 174 of the Laws of 1968, as amended.

(q) Decentralized lending program shall have the meaning assigned to such term in section 4230.1(a) of this Part.

(r) Distressed community means a census tract or tracts or block numbering area or areas and any tract or block numbering areas contiguous thereto which either is in an economic development zone or displays any of the following characteristics:

(1) The percentage of the population in the relevant area which is living below the poverty level is equal to or exceeds the percentage of the population of the State living below such level.

(2) The population in the relevant area which is living below the poverty level is increasing at an annual rate in excess of the rate at which the population of the State living below such level is increasing.

(3) The percentage of the population in the relevant area receiving public assistance is equal to or greater than the percentage of the population of the State receiving such assistance.

(4) The population in the relevant area receiving public assistance is increasing at an annual rate in excess of the rate at which the population of the State receiving such assistance is increasing.

(5) The level of payroll employment in the relevant area declined at a rate greater than the annual rate at which payroll employment is declining in the State.

(6) The level of payroll employment increased at a rate lower than the rate at which payroll employment increased in the State during the two calendar years or 24-month period immediately preceding the date of any determination.

(7) The level of unemployment in the relevant area is equal to or exceeds the level of unemployment in the State during the two calendar years or 24-month period immediately preceding the date of any determination.

(s) Economic development zone means an area or community designated as such pursuant to article 18-B of the General Municipal Law of the State.

(t) Educational institution shall mean:

(1) any school, college, university, vocational educational institution or other entity subject to the supervision of the State Education Department pursuant to the State Education Law; and

(2) any for-profit enterprise that derives 30 percent or more of its gross income from training or instructional activities. The term educational institution shall not include any not-for-profit corporation organized for other than educational purposes and affiliated with an entity described in paragraph (1) or (2) of this subdivision.

(u) Eligible banking organization shall mean any of the following organizations that shall be insured by the Federal Deposit Insurance Corporation (FDIC) or the National Credit Union Administration ("NCUA"), as the case may be, or any successor agency of FDIC or NCUA:

(1) a bank;

(2) a savings bank;

(3) a credit union;

(4) an agency or branch of a foreign banking corporation licensed by the State Banking Department under State Banking Law; or

(5) any organization defined as a banking organization under subdivision 11 of section 2 of the State Banking Law.

(v) Eligible contracting agency shall mean any governmental entity or authority which has established, or proposes to establish, a program to provide technical assistance to eligible government contractors.

(w) Eligible government contractor shall mean a contractor that is a minority and/or women-owned business enterprise and has a government contract.

(x) Eligible incubator project shall have the meaning assigned to such term in section 4230.11(a) of this Part.

(y) Eligible incubator project costs means the aggregate costs of undertaking and implementing an eligible incubator project for which incubator assistance is sought as reflected in the budget submitted by the eligible incubator sponsor with the incubator application.

(z) Eligible incubator sponsor means a business corporation or not-for-profit corporation that implements or desires to implement an eligible incubator project provided that no such entity shall constitute an eligible incubator sponsor if it shall be owned, controlled or operated by any person, partnership or other entity, a controlling interest of which is legally or beneficially owned by one or more employees of the State or of any instrumentality of the State, or by any member of the immediate family of such employee.

(aa) Eligible incubator tenant means a minority and/or women-owned business enterprise that satisfies the following criteria:

(1) it employs 50 persons or less;

(2) it has developed or has the potential to develop a product or technology, or provides a service, or is involved in wholesale or retail sales of a product, for which there exists an identified market;

(3) it satisfies either of the following criteria:

(i) it is an incubator start-up business; or

(ii) it has been in operation for less than seven years; and

(4) it shall not be owned, controlled or operated by any person, partnership or other entity, a controlling interest of which is legally or beneficially owned by one or more employees of the State or of any instrumentality of the State, or by any member of the immediate family of any such employee.

(ab) Eligible technical assistance provider shall have the meaning assigned to such term in section 4230.12(a)(2) of this Part.

(ac) Eligible technical assistance recipient shall have the meaning assigned to such term in section 4230.12(a)(1) of this Part.

(ad) Eligible trust fund project shall mean any project undertaken by a minority and/or women-owned business enterprise, subject to the limitations of section 4230.6(f) of this Part.

(ae) Franchise loan shall mean a loan for the purposes described in, and meeting the criteria enumerated in section 4230.9 of this Part.

(af) Franchise loan guaranty shall have the meaning assigned to such term in section 4230.10 of this Part.

(ag) Government contract shall mean any of the following types of contracts:

(1) a construction contract with, or a contract to provide goods or services to, a governmental entity or authority;

(2) a subcontract on a government-sponsored construction contract;

(3) a contract or subcontract on a government-sponsored residential project; or

(4) a contract or subcontract on a construction project previously approved by the corporation pursuant to section 10 of the UDC Act.

(ah) Government contractor bonding assistance shall have the meaning assigned to such term in section 4230.7(d) of this Part.

(ai) Government contractor loan shall mean a loan for the purposes described in, and meeting the criteria enumerated in section 4230.7(b)(1) of this Part.

(aj) Government contractor loan guaranty shall have the meaning assigned to such term in section 4230.10 of this Part.

(ak) Government contractor technical assistance shall have the meaning set forth in section 4230.12(d) of this Part.

(al) Incubator means a facility, or a portion of a facility, which is designed and operated to facilitate the establishment and promote the growth of small business enterprises.

(am) Incubator application means an application for incubator assistance in a form prescribed by the corporation.

(an) Incubator assistance shall mean assistance provided by the corporation to an eligible incubator sponsor proposing to undertake an eligible incubator project in accordance with the criteria set forth in section 4230.11 of this Part.

(ao) Incubator operator means either the eligible incubator sponsor of an eligible incubator project or another person or entity engaged by the eligible incubator sponsor to operate and provide day-to-day management of the eligible incubator project.

(ap) Incubator start-up business means a person or entity which can demonstrate that it will commence operations in an efficient and orderly manner shortly after admission into an eligible incubator project.

(aq) Intermediary means a recipient of program assistance on behalf of a beneficiary, as set forth in section 4230.3 of this Part.

(ar) Linked deposit shall have the meaning set forth in section 4230.5 of this Part.

(as) Loan application shall mean an application for program assistance in the form of a government contractor loan, business development loan or franchise loan, as set forth in section 4230.15(f)-(l) of this Part.

(at) Loan guaranty shall mean a guaranty for the purposes described in, and meeting the criteria enumerated in section 4230.10 of this Part.

(au) Local advisory committee means a committee of business persons and professionals appointed by the eligible incubator sponsor to advise in the development of the management and business plan and the design of business development services to be rendered to eligible incubator tenants of an eligible incubator project. In addition, the local advisory committee shall review the operations of the eligible incubator project in light of the requirements of the management and business plan. The members of the local advisory committee must have experience that can contribute to the successful operation of the eligible incubator project. At least one-half of the members of the local advisory committee shall be minority persons and women. No member of the local advisory committee shall own any legal or beneficial interest in:

(1) the incubator facility;

(2) the eligible incubator sponsor of the eligible incubator project;

(3) any partnership, corporation or other entity which is the legal or beneficial owner of the incubator facility or of the eligible incubator sponsor of the eligible incubator project; or

(4) any eligible incubator tenant.

(av) Management and business plan shall have the meaning assigned to such term in section 4230.11(c) of this Part.

(aw) Minority and women revolving loan trust fund account shall mean each and every account established by the corporation for administration by an administering corporation pursuant to section 4230.6 of this Part.

(ax) Minority-owned business enterprise (MBE) shall mean any business enterprise that is:

(1) organized on a for-profit basis;

(2) formally authorized to do business in the State;

(3) operated out of a fixed business location; and

(4) at least 51 percent owned by, or in the case of a publicly owned business at least 51 percent of the common stock of which is owned by United States citizens or permanent resident aliens who are minority persons. Such ownership must be real, substantial and continuing. The ownership interest must have and exercise the authority to control independently the day-to- day business decisions of the enterprise.

(ay) Minority or minority person shall mean:

(1) Black persons having origins in any of the Black African racial groups, not of Hispanic origin;

(2) Hispanic persons of Mexican, Puerto Rican, Dominican, Cuban, Central or South American descent, of either Indian or Hispanic origin, regardless of race;

(3) Asian and Pacific Islander persons having origins in any of the Far East, Southeast Asia, the Indian subcontinent or the Pacific Islands; and

(4) American Indian or Alaskan Native persons having origins in any of the original peoples of North America and maintaining identifiable tribal affiliations through membership and participation or community identification.

(az) Municipality shall mean any city, county, town or village.

(ba) Nationally recognized corporation shall mean any franchiser corporation registered with the State Attorney General in accordance with New York law, authorized to do business in New York State, having operations in at least three states and having at least 15 franchised locations.

(bb) Net administrative costs shall mean the amount, if any, by which administrative costs exceed administrative income.

(bc) Program shall mean the minority and women-owned business development and lending program established pursuant to the appropriating legislation.

(bd) Program assistance shall mean assistance from the corporation utilizing program funds.

(be) Service delivery region shall mean an area of the State served by an administering corporation containing no less than one entire county thereof, or a population of no fewer than 300,000 persons, whichever is less populous.

(bf) State shall mean the State of New York.

(bg) State certification director shall mean the head of the Division of Minority and Women's Business Development of the Department of Economic Development (or any successor agency thereof), who is appointed by the Governor and is a member of the Executive Chamber of the State.

(bh) Technical assistance shall mean assistance in the forms permitted under section 4230.12 of this Part from the corporation utilizing program funds.

(bi) Technical assistance program shall mean a program of comprehensive technical assistance provided by the corporation to assist minority and women-owned business enterprises and individuals who are minority persons or women; such assistance shall be provided in accordance with the criteria set forth in section 4230.12 of this Part.

(bj) Total eligible trust fund project cost shall mean the cost required to implement and complete an eligible trust fund project.

(bk) Trust fund shall mean the minority and women revolving loan trust fund created by the appropriating legislation.

(bl) Trust fund fixed asset loans shall mean secured or unsecured loans made pursuant to the trust fund lending program for the acquisition or improvement of real property or for the acquisition of machinery and equipment, in principal sums not exceeding $50,000 and for terms as follows:

(1) if the loan finances the acquisition of real property, a period determined by the administering corporation; or

(2) if the loan finances the purchase of machinery and equipment or the improvement of real property, a period not exceeding the useful life of the machinery and equipment or improvements financed therewith.

(bm) Trust Fund Lending Program shall mean the program, set forth in section 4230.6 of this Part, whereby the corporation establishes minority and women revolving loan trust fund accounts and deposits into said accounts funds which are used by administering corporations selected by the corporation to make trust fund loans to minority and/or women-owned business enterprises for eligible trust fund projects.

(bn) Trust fund loan committee shall mean a committee composed of six or more persons experienced in business management, commercial lending or in the operation of a for-profit business, at least one-half of whom shall be experienced in commercial lending, at least one-third of whom shall be minority persons and at least one-third of whom shall be women.

(bo) Trust fund loans shall mean trust fund working capital loans or trust fund fixed asset loans that are made by an administering corporation from funds deposited by the corporation into a minority and women revolving loan trust fund account.

(bp) Trust fund proceeds shall mean any and all monies made available to the corporation for deposit to the trust fund, including monies appropriated by the State and any income earned by, or incremental to, the account due to the investment of same, or any repayments of monies advanced from the trust fund.

(bq) Trust fund working capital loans shall mean secured or unsecured loans made pursuant to the Trust Fund Lending Program for working capital, revolving lines of credit, and seasonal inventory in principal sums not exceeding $35,000 and for terms not exceeding five years.

(br) UDC Act shall mean chapter 174 of the Laws of 1968, as amended.

(bs) Women-owned business enterprise (WBE) shall mean any business enterprise that is:

(1) organized on a for-profit basis;

(2) formally authorized to do business in the State;

(3) operated out of a fixed business location; and

(4) at least 51 percent owned, or in the case of a publicly-owned business, at least 51 percent of the common stock of which is owned by U.S. citizens or permanent resident aliens who are women, regardless of race or ethnicity. Such ownership interest must be real, substantial and continuing. The ownership interest must have and exercise the authority to control independently the day-to-day business decisions of the enterprise.

N.Y. Comp. Codes R. & Regs. Tit. 21 § 4230.2