New Jersey § 34:1b-337

§ 34:1b-337.

As used in sections 68 through 81 of P.L.2020, c. 156 ( C.34:1B-336 et al.): “ Affiliate ” means an entity that directly or indirectly controls, is under common control with,

or is controlled by the business. Control exists in all cases in which the entity is a member of a controlled group

of corporations, as defined pursuant to section 1563 of the Internal Revenue Code of 1986 ( 26 U.S.C. s.1563 ), or the entity is an organization in a group of organizations under common control,

as defined pursuant to subsection (c) of section 414 of the Internal Revenue Code of 1986 ( 26 U.S.C. s.414 ). A taxpayer may establish by clear and convincing evidence, as determined by the

Director of the Division of Taxation in the Department of the Treasury, that control

exists in situations involving lesser percentages of ownership than required by sections 1563 and 414 of the Internal Revenue Code of 1986 (26 U.S.C. ss.1563 and 414). “ Authority ” means the New Jersey Economic Development Authority established by section 4 of

P.L.1974, c. 80 ( C.34:1B-4 ). “ Aviation district ” means all areas within the boundaries of the Atlantic City International Airport,

established pursuant to section 24 of P.L.1991, c. 252 ( C.27:25A-24 ), and the Federal Aviation Administration William J. Hughes Technical Center and

the area within a one-mile radius of the outermost boundary of the Atlantic City International

Airport and the Federal Aviation Administration William J. Hughes Technical Center. “ Board ” means the Board of the New Jersey Economic Development Authority, established by

section 4 of P.L.1974, c. 80 ( C.34:1B-4 ). “ Building services ” means any cleaning or routine building maintenance work, including but not limited

to sweeping, vacuuming, floor cleaning, cleaning of rest rooms, collecting refuse

or trash, window cleaning, securing, patrolling, or other work in connection with

the care or securing of an existing building, including services typically provided

by a door-attendant or concierge. “Building services” shall not include any skilled maintenance work, professional

services, or other public work for which a contractor is required to pay the “prevailing

wage” as defined in section 2 of P.L.1963, c. 150 ( C.34:11-56.26 ). “ Business ” means an applicant proposing to own or lease premises in a qualified business facility

that is: a corporation that is subject to the tax imposed pursuant to section 5 of

P.L.1945, c. 162 ( C.54:10A-5 ), sections 2 and 3 of P.L.1945, c. 132 ( C.54:18A-2 and C.54:18A-3 ), section 1 of P.L.1950, c. 231 ( C.17:32-15 ), or N.J.S.17B:23-5 , or is a partnership, S corporation, limited liability company, or non-profit corporation. A business shall include an affiliate of the business if that business applies for

a credit based upon any capital investment made by or full-time employees of an affiliate. If the business or tenant is a cooperative or part of a cooperative, then the cooperative

may qualify for credits by counting the full-time employees and capital investments

of its member organizations, and the cooperative may distribute credits to its member

organizations. If the business or tenant is a cooperative that leases to its member organizations,

the lease shall be treated as a lease to an affiliate or affiliates. “ Capital investment ” means expenses that a business or an affiliate of the business incurs , or is incurred on behalf of the business or affiliate by its landlord, following its submission of an application to the authority pursuant to section 72

of P.L.2020, c. 156 ( C.34:1B-340 ), but prior to the project completion date, as shall be defined in the project agreement,

for: a. site preparation and construction, repair, renovation, improvement, equipping,

or furnishing on real property or of a building, structure, facility, or improvement

to real property; b. obtaining and installing furnishings and machinery, apparatus,

or equipment, including but not limited to material goods subject to bonus depreciation

under sections 168 and 179 of the federal Internal Revenue Code (26 U.S.C. ss.168 and 179), for the operation of a business on real property or in

a building, structure, facility, or improvement to real property; or any combination

of the foregoing. “ College or university ” means a county college, an independent institution of higher education, a public

research university, or a State college. “ Commitment period ” means a period that is 1.5 times the eligibility period specified in the project

agreement entered into pursuant to section 73 of P.L.2020, c. 156 ( C.34:1B-341 ), rounded up, for each applicable phase agreement. “ County college ” means an educational institution established by one or more counties, pursuant to

chapter 64A of Title 18A of the New Jersey Statutes. “ Director ” means the Director of the Division of Taxation in the Department of the Treasury. “ Distressed municipality ” means a municipality that is qualified to receive assistance under P.L.1978, c.

14 ( C.52:27D-178 et seq. ), a municipality under the supervision of the Local Finance Board pursuant to the

provisions of the “Local Government Supervision Act (1947),” P.L.1947, c. 151 ( C.52:27BB-1 et seq. ), a municipality identified by the Director of the Division of Local Government Services

in the Department of Community Affairs to be facing serious fiscal distress, a SDA

municipality, or a municipality in which a major rail station is located. “ Doctoral university ” means a university located within New Jersey that is classified as a doctoral university

under the Carnegie Classification of Institutions of Higher Education's Basic Classification

methodology on the effective date of P.L.2017, c. 221 . “ Eligibility period ” means the period in which an eligible business may claim a tax credit under the

program for a given project phase, beginning with the tax period in which the authority

accepts certification of the eligible business that it has met the capital investment

and employment requirements of the program for the respective project phase, and extending

thereafter for a term of not more than seven years, with the term to be determined

at the discretion of the applicant, provided that the term of the eligibility period

may consist of nonconsecutive tax years if the applicant elects at any time after

the end of the first tax period of the eligibility period to defer the continuation

of the eligibility period to a subsequent tax period. The authority may extend the eligibility period one additional tax period to accommodate

a prorated payment pursuant to paragraph (2) of subsection a. of section 77 of P.L.2020, c. 156 ( C.34:1B-345 ). “ Eligible business ” means any business that satisfies the criteria set forth in section 71 of P.L.2020, c. 156 ( C.34:1B-339 ) at the time of application for tax credits under the program. “ Eligible position ” or “ full-time job ” means a full-time position in a business in this State which the business has filled

with a full-time employee. An eligible position shall not include an independent contractor or a consultant. “ Employment and Investment Corridor ” means the portions of the qualified incentive area that are not located within a

distressed municipality and which: a. are designated pursuant to the “State Planning Act,” P.L.1985, c. 398 ( C.52:18A-196 et seq. ), as Planning Area 1 (Metropolitan), Planning Area 2 (Suburban), a designated center

under the State Development and Redevelopment Plan, or a designated growth center

in an endorsed plan or until the State Planning Commission revises and readopts New Jersey's State Development and Redevelopment Plan and adopts regulations to revise this definition; b. intersect with portions of: a port district, a qualified incentive tract, or federally-owned

land approved for closure under a federal Commission on Base Realignment and Closure

action; c. are the proposed site of a qualified incubator facility, a tourism destination

project, or transit oriented development; or d. contain: a vacant commercial building having over 400,000 square feet of office,

laboratory, or industrial space , or any combination of office, laboratory, or industrial space, available for occupancy for a period of over one year; or a site that has been negatively

impacted by the approval of a “qualified business facility,” as defined pursuant to

section 2 of P.L.2007, c. 346 ( C.34:1B-208 ). “ Enhanced area ” means (1) a municipality that contains an urban transit hub as defined in section 2 of P.L.2007, c. 346 ( C.34:1B-208 ), (2) the five municipalities with the highest poverty rates according to the 2017

Municipal Revitalization Index, and (3) the three municipalities with the highest

percentage of SNAP recipients according to the 2017 Municipal Revitalization Index. “ Full-time employee ” means a person: a. who is employed by a business for consideration for at least 35 hours a week, or

who renders any other standard of service generally accepted by custom or practice

as full-time employment, and whose wages are subject to withholding as provided in

the “New Jersey Gross Income Tax Act,” N.J.S.54A:1-1 et seq. ; b. who is employed by a professional employer organization pursuant to an employee

leasing agreement between the business and the professional employer organization,

pursuant to P.L.2001, c. 260 ( C.34:8-67 et seq. ) for at least 35 hours a week, or who renders any other standard of service generally

accepted by custom or practice as full-time employment, and whose wages are subject

to withholding as provided in the “New Jersey Gross Income Tax Act,” N.J.S.54A:1-1 et seq. ; or c. who is a resident of another State, but whose income is not subject to the “New

Jersey Gross Income Tax Act,” N.J.S.54A:1-1 et seq. , due to a reciprocity agreement with the other state , or who is a partner of a business who works for the partnership for at least 35

hours a week, or who renders any other standard of service generally accepted by custom

or practice as full-time employment, and whose distributive share of income, gain,

loss, or deduction, or whose guaranteed payments, or any combination thereof, is subject

to the payment of estimated taxes, as provided in the “New Jersey Gross Income Tax

Act,” N.J.S.54A:1-1 et seq. , due to a reciprocity agreement with the other state. With respect to a logistics, manufacturing, energy, defense, aviation, or maritime

business, excluding primarily warehouse or distribution operations, located in a port

district having a container terminal, the requirement that employee health benefits

are to be provided shall be deemed to be satisfied if the benefits are provided in

accordance with industry practice by a third party obligated to provide such benefits

pursuant to a collective bargaining agreement. A “full-time employee” shall include, but shall not be limited to, an employee that

has been hired by way of a labor union hiring hall or its equivalent. 35 hours of

employment per week in the State shall constitute one “full-time employee,” regardless of whether or not the hours

of work were performed by one or more persons. “Full-time employee” shall not include any person who works as an independent contractor

or on a consulting basis for the business or a contract worker whose income is subject

to withholding as provided in the “New Jersey Gross Income Tax Act,” N.J.S.54A:1-1 et seq. , except that any person working as an independent contractor or contract worker whose

income is subject to withholding as provided in the “New Jersey Gross Income Tax Act,” N.J.S.54A:1-1 et seq. , for the business shall be deemed a full-time employee if the business demonstrates

to the authority that: (a) the person working as an independent contractor for the

business works at least 35 hours per week or renders any other standard service generally

accepted by custom or practice as full- time employment, and the person is provided

with employee health benefits under a health benefits plan authorized pursuant to

State or federal law; and (b) the business provides documentation to the authority

to permit the authority to verify the compensation paid to, and the time worked by,

the person working as an independent contractor. The business shall provide to the authority an annual report that identifies the

number of persons working as independent contractors for the business and their contractual

or partnering relationship with the business. “Full-time employee” shall not include any person who, at the time of project application,

works in New Jersey for consideration for at least 35 hours per week for the business,

or who renders any other standard of service generally accepted by custom or practice

as full-time employment, but who, prior to project application, was not provided,

by the business, with employee health benefits under a health benefits plan authorized

pursuant to State or federal law. “ Government-restricted municipality ” means a municipality in this State with a municipal revitalization index distress

score of at least 75, that met the criteria for designation as an urban aid municipality

in the 2019 State fiscal year, and that, on the effective date of P.L.2020, c. 156 ( C.34:1B-269 et al.), is subject to financial restrictions imposed pursuant to the “Municipal

Stabilization and Recovery Act,” P.L.2016, c. 4 ( C.52:27BBBB-1 et seq. ), or is restricted in its ability to levy property taxes on property in that municipality

as a result of the State of New Jersey owning or controlling property representing

at least 25 percent of the total land area of the municipality or as a result of the

federal government of the United States owning or controlling at least 50 acres of

the total land area of the municipality, which is dedicated as a national natural

landmark. “ Incentive area ” means: a. an aviation district; b. a port district; c. a distressed municipality or enhanced area ; d. an area designated pursuant to the “State Planning Act,” P.L.1985, c. 398 ( C.52:18A-196 et seq. ), as Planning Area 1 (Metropolitan), Planning Area 2 (Suburban), Planning Area 3

(Fringe Planning Area); or a Designated Center under the State Development and Redevelopment

Plan ; e. an area located within a smart growth area and planning area designated in a master

plan adopted by the New Jersey Meadowlands Commission pursuant to subsection (i) of

section 6 of P.L.1968, c. 404 ( C.13:17-6 ) or subject to a redevelopment plan adopted by the New Jersey Meadowlands Commission

pursuant to section 20 of P.L.1968, c. 404 ( C.13:17-21 ); f. an area located within any land owned by the New Jersey Sports and Exposition Authority,

established pursuant to P.L.1971, c. 137 ( C.5:10-1 et seq. ), within the boundaries of the Hackensack Meadowlands District as delineated in section

4 of P.L.1968, c. 404 ( C.13:17-4 ); g. an area located within a regional growth area, rural development area zoned for

industrial use as of the effective date of P.L.2016, c. 75, or town, village, or a military and federal installation area designated in the comprehensive

management plan prepared and adopted by the Pinelands Commission pursuant to the “Pinelands

Protection Act,” P.L.1979, c. 111 ( C.13:18A-1 et seq. ); h. an area located within a government-restricted municipality; i. an area located within land approved for closure under any federal Commission on

Base Realignment and Closure action; j. an area located within an area designated pursuant to the “State Planning Act,”

P.L.1985, c. 398 ( C.52:18A-196 et seq. ), as Planning Area 4A (Rural Planning Area), Planning Area 4B (Rural/Environmentally

Sensitive), or Planning Area 5 (Environmentally Sensitive), so long as that area designated

as Planning Area 4A (Rural Planning Area), Planning Area 4B (Rural/Environmentally

Sensitive), or Planning Area 5 (Environmentally Sensitive) is located within: (1)

a designated center under the State Development and Redevelopment Plan; (2) a designated

growth center in an endorsed plan until the State Planning Commission revises and

readopts New Jersey's State Development and Redevelopment Plan and adopts regulations to revise this definition as it pertains to Statewide

planning areas; (3) any area determined to be in need of redevelopment pursuant to

sections 5 and 6 of P.L.1992, c. 79 ( C.40A:12A-5 and C.40A:12A-6 ) or in need of rehabilitation pursuant to section 14 of P.L.1992, c. 79 ( C.40A:12A-14 ); (4) any area on which a structure exists or previously existed including any desired

expansion of the footprint of the existing or previously existing structure provided

the expansion otherwise complies with all applicable federal, State, county, and local

permits and approvals; or (5) any area on which an existing tourism destination project

is located; or k. an area located in a qualified opportunity zone. “ Independent institution of higher education ” means a college or university incorporated and located in New Jersey, which by virtue

of law, character, or license is a nonprofit educational institution authorized to

grant academic degrees and which provides a level of education that is equivalent

to the education provided by the State's public institutions of higher education,

as attested by the receipt of and continuation of regional accreditation by the Middle

States Association of Colleges and Schools, and which is eligible to receive State

aid under the provisions of the Constitution of the United States and the Constitution

of the State of New Jersey, but does not include any educational institution dedicated

primarily to the education or training of ministers, priests, rabbis, or other professional

persons in the field of religion. “ Industrial premises ” or “ industrial space ” means premises or space in which at least 51 percent of the square footage will

be or has been used for the assembling, processing, manufacturing, or any combination

thereof, of finished or partially finished products from materials or fabricated parts,

including, but not limited to, factories or as a warehouse if the business uses the

warehouse as part of the chain of distribution for products assembled, processed,

manufactured, or any combination thereof, by the business at the qualified business

facility; for the breaking or demolishing of finished or partially finished products;

or for the production of oil or gas or the generation or transformation of electricity. “ Industrial use ” means assembling, processing, manufacturing, or any combination thereof, of finished

or partially finished products from materials or fabricated parts; the breaking or

demolishing of finished or partially finished products; or the production of oil

or gas or the generation or transformation of electricity. “ Industrial use ” includes farming purposes as that term is defined under 26 U.S.C. s.6420(c)(3)(A) , undertaken in an industrial space. “ Infrastructure Fund ” means the Recovery Infrastructure Fund established pursuant to section 79 of P.L.2020, c. 156 ( C.52:27D-520 ) to fund local infrastructure improvements. “ Labor harmony agreement ” means an agreement between a business that serves as the owner or operator of a

retail establishment or distribution center and one or more labor organizations, which

requires, for the duration of the agreement: that any participating labor organization

and its members agree to refrain from picketing, work stoppages, boycotts, or other

economic interference against the business; and that the business agrees to maintain

a neutral posture with respect to efforts of any participating labor organization

to represent employees at an establishment or other unit in the retail establishment

or distribution center, agrees to permit the labor organization to have access to

the employees, and agrees to guarantee to the labor organization the right to obtain

recognition as the exclusive collective bargaining representatives of the employees

in an establishment or unit at the retail establishment or distribution center by

demonstrating to the New Jersey State Board of Mediation, Division of Private Employment

Dispute Settlement, or a mutually agreed-upon, neutral, third-party, that a majority

of workers in the unit have shown their preference for the labor organization to be

their representative by signing authorization cards indicating that preference. The labor organization or organizations shall be from a list of labor organizations

which have requested to be on the list and which the Commissioner of Labor and Workforce

Development has determined represent substantial numbers of retail or distribution

center employees in the State. “ Major rail station ” means a railroad station that is located within a qualified incentive area and that

provides to the public access to a minimum of six rail passenger service lines operated

by the New Jersey Transit Corporation. “ Mega project ” means a project of special economic importance, as determined pursuant to regulations

adopted by the board, as measured by the level of new jobs, new capital investment,

and opportunities to leverage leadership in a high-priority targeted industry, as

determined by the authority pursuant to rules and regulations promulgated to implement

sections 68 through 81 of P.L.2020, c. 156 ( C.34:1B-336 et al.). “ Minimum environmental and sustainability standards ” means standards established by the authority in accordance with the green building

manual prepared by the Commissioner of Community Affairs pursuant to section 1 of P.L.2007, c. 132 ( C.52:27D-130.6 ), regarding the use of renewable energy, energy-efficient technology, and non-renewable

resources to reduce environmental degradation and encourage long-term cost reduction. “ Municipal Revitalization Index ” means the index by the Department of Community Affairs ranking New Jersey's municipalities

according to eight separate indicators that measure diverse aspects of social, economic,

physical, and fiscal conditions in each locality. “ New full-time job ” means an eligible position created by a business that did not previously exist in this State. For the purposes of determining the number of new full-time jobs, the eligible positions

of an affiliate shall be considered eligible positions of the business. “ Other eligible area ” means the portions of the incentive area that are not located within a distressed

municipality, or the employment and investment corridor. “ Partnership ” means an entity classified as a partnership for federal income tax purposes. “ Port district ” means the portions of an incentive area that are located within the “Port of New

York District” of the Port Authority of New York and New Jersey, as defined in Article

II of the Compact Between the States of New York and New Jersey of 1921; or a 15-mile

radius of the outermost boundary of each marine terminal facility established, acquired,

constructed, rehabilitated, or improved by the South Jersey Port District established

pursuant to “The South Jersey Port Corporation Act,” P.L.1968, c. 60 ( C.12:11A-1 et seq. ). “ Professional employer organization ” means an employee leasing company registered with the Department of Labor and Workforce

Development pursuant to P.L.2001, c. 260 ( C.34:8-67 et seq. ). “ Program ” means the Emerge Program established by section 70 of P.L.2020, c. 156 ( C.34:1B-338 ). “ Project ” means the capital investment at a qualified business facility and the employment commitment pursuant to the project agreement. “ Project agreement ” means the contract executed between an eligible business and the authority pursuant

to section 73 of P.L.2020, c. 156 ( C.34:1B-341 ), which sets forth the terms and conditions under which the eligible business may

receive the incentives authorized pursuant to the program. “ Project labor agreement ” means a form of pre-hire collective bargaining agreement covering terms and conditions

of a specific project that satisfies the requirements set forth in section 5 of P.L.2002, c. 44 ( C.52:38-5 ). “ Project phase agreement ” means a sub-agreement of the project agreement that governs the timing, capital

investment, employment levels, and other applicable details of the respective phase. “ Public research university ” means a public research university as defined in section 3 of P.L.1994, c. 48 ( C.18A:3B-3 ). “ Qualified business facility ” means any building, complex of buildings, or structural components of buildings,

and all machinery and equipment located therein, used in connection with the operation

of a business that is not engaged in final point of sale retail business at that location,

unless the building, complex of buildings or structural components of buildings, and

all machinery and equipment therein, are used in connection with the operation of

a tourism destination project located in the Atlantic City Tourism District as established

pursuant to section 5 of P.L.2011, c. 18 ( C.5:12-219 ). “ Qualified incentive tract ” means: a. a population census tract having a poverty rate of 20 percent or more;

or b. a census tract in which the median family income for the census tract does not

exceed 80 percent of the greater of the Statewide median family income or the median

family income of the metropolitan statistical area in which the census tract is situated. “ Qualified incubator facility ” means a commercial building located within an incentive area: that contains 5,000

or more square feet of office, laboratory, or industrial space; that is located near,

and presents opportunities for collaboration with, a research institution, teaching

hospital, college, or university; and within which at least 50 percent of the gross

leasable area is restricted for use by one or more technology startup companies during

the commitment period. “ Qualified opportunity zone ” means a federal population census tract in this State that was eligible to be designated

as a qualified opportunity zone pursuant to 26 U.S.C. s.1400Z-1 . “ Quality child care facility ” is a child care center licensed by the Department of Children and Families or a registered family child care home with the Department of Human Services , operating continuously, which has not been subject to an enforcement action, and

which has and maintains a licensed capacity for children age 13 years or younger who attend for less than 24 hours a day . “ Retained full-time job ” means an eligible position that currently exists in New Jersey and is filled by

a full-time employee, but which, because of a potential relocation by the business or is at risk of being lost to another state or country . For the purposes of determining the number of retained full-time jobs, the eligible

positions of an affiliate shall be considered eligible positions of the business. “ SDA district ” means an SDA district as defined in section 3 of P.L.2000, c. 72 ( C.18A:7G-3 ). “ SDA municipality ” means a municipality in which an SDA district is situated. “ Small business ” means a business engaged primarily in a targeted industry with fewer than 100 employees,

as determined at the time of application. “ State college ” means a State college or university established pursuant to chapter 64 of Title

18A of the New Jersey Statutes. “ Targeted industry ” means any industry identified from time to time by the authority which shall initially

include advanced transportation and logistics, advanced manufacturing, aviation, autonomous

vehicle and zero-emission vehicle research or development, clean energy, life sciences,

hemp processing, information and high technology, finance and insurance, professional

services, film and digital media, non-retail food and beverage businesses including

food innovation, and other innovative industries that disrupt current technologies

or business models. “ Technology startup company ” means a for-profit business that has been in operation fewer than seven years at

the time that it initially occupies or expands in a qualified business facility and

is developing or possesses a proprietary technology or business method of a high technology

or life science-related product, process, or service, which proprietary technology

or business method the business intends to move to commercialization. The business shall be deemed to have begun operation on the date that the business

first hired at least one employee in a full-time position. “ Tourism destination project ” means a qualified non-gaming business facility that will be among the most visited

privately owned or operated tourism or recreation sites in the State, and which is

located within the incentive area and has been determined by the authority to be in

an area appropriate for development and in need of economic development incentive

assistance, including a non-gaming business within an established tourism district

with a significant impact on the economic viability of that tourism district. “ Transit oriented development ” means a qualified business facility located within a 1 / 2 -mile radius, or one-mile radius for projects located in a Government-restricted

municipality, surrounding the mid-point of a New Jersey Transit Corporation, Port

Authority Transit Corporation, or Port Authority Trans-Hudson Corporation rail, bus,

or ferry station platform area, including all light rail stations. “ Transit hub ” means an urban transit hub, as defined in section 2 of P.L.2007, c. 346 ( C.34:1B-208 ), that is located within an eligible municipality, as defined in section 2 of P.L.2007, c. 346 ( C.34:1B-208 ), and that is also located within an incentive area. “ Transit hub municipality ” means a Transit Village or a municipality: a. which qualifies for State aid pursuant

to P.L.1978, c. 14 ( C.52:27D-178 et seq. ), or which has continued to be a qualified municipality thereunder pursuant to P.L.2007, c. 111 ; and b. in which 30 percent or more of the value of real property was exempt from

local property taxation during tax year 2006. The percentage of exempt property shall be calculated by dividing the total exempt

value by the sum of the net valuation which is taxable and that which is tax exempt. “ Transit Village ” means a municipality that has been designated as a transit village by the Commissioner

of Transportation and the Transit Village Task Force.