NY Pub Auth L § 1680-J (2021)
2021 New York Laws PBA - Public Authorities Article 8 - Miscellaneous Authorities Title 4 - Dormitory Authority 1680-J - New York State Higher Education Capital Matching Grant Board; Creation; Procedure.

* §  1680-j.  New  York  state higher education capital matching grant board; creation; procedure. 1. Creation. (a) The New York  state  higher education  capital  matching  grant  board is hereby created to have and exercise the powers, duties and prerogatives provided by the  provisions of  this  section and any other provision of law. The board shall remain in existence during the period of the New York  state  higher  education capital  matching  grant program from the effective date of this section through March thirty-first, two thousand nine, or the date on which  the last  of  the  funds  available for grants under this section shall have been disbursed,  whichever  is  earlier;  provided,  however,  that  the termination of the existence of the board shall not effect the power and authority  of  the  dormitory  authority to perform its obligations with respect to any bonds, notes, or other indebtedness  issued  or  incurred pursuant to authority granted in this section.  (b)  The  membership  of  the  board  shall  consist  of three persons appointed by the governor, of which one shall be upon the recommendation of the temporary president of the senate and one upon the recommendation of the speaker of the assembly. The term of the members first  appointed shall   continue  until  March  thirty-first,  two  thousand  five,  and thereafter their successors shall serve for a term of one year ending on March thirty-first in each year. Upon recommendation of  the  nominating party,  the  governor  shall  replace  any member in accordance with the provision contained in this subdivision for the appointment of  members. The  members  of  the board shall vote among themselves to determine who shall serve as chair. The board shall  act  by  unanimous  vote  of  the members  of the board. Any determination of the board shall be evidenced by a certification thereof executed by all the members. Each  member  of the  board  shall  be  entitled  to designate a representative to attend meetings of the board on the designating member's behalf, and to vote or otherwise act on the designating  member's  behalf  in  the  designating member's  absence.  Notice  of  such  designation  shall be furnished in writing to the board by the designating member. A  representative  shall serve at the pleasure of the designating member during the member's term of  office.  A representative shall not be authorized to delegate any of his or her duties or functions to any other person.  (c) Every officer, employee, or member of a governing board  or  other board  of any college or group or association of colleges, and every New York state regent, every officer or employee of the board of regents  or the  department  of  education and every trustee, officer or employee of the state university of New York or the  city  university  of  New  York shall  be  ineligible  for  appointment  as  a  member,  representative, officer, employee or agent of the board.  (d) The members of the board shall serve without salary  or  per  diem allowance  but  shall  be  entitled  to  reimbursement  for  actual  and necessary expenses  incurred  in  the  performance  of  official  duties pursuant  to  this  section  or other provision of law, provided however that such members and representatives are not, at the time such expenses are incurred, public officers or employees otherwise  entitled  to  such reimbursement.  (e)  The  members,  their  representatives,  officers and staff to the board shall be deemed employees within the meaning of section  seventeen of the public officers law.   2.  Definitions. For the purposes of this section, the following terms shall have the respective meanings:  (a) "Base grant amount" shall mean a  grant  equal  to  $17.5  million distributed  equally  among  independent colleges, provided however that for  an  eligible  independent  college  with  a  final  fall  full-time equivalent  enrollment  for  the  two  thousand three--two thousand four  academic year as published by the state  education  department  of  less than  one  hundred  final  full-time  equivalent students the base grant amount shall be one hundred thousand dollars.  (b)  "Board"  shall  mean  the New York state higher education capital matching grant board created by paragraph (a) of subdivision one of this section.  (c) "College" shall mean a public or independent college.  (d)  "Endowment"  shall  mean  the  total  unrestricted  assets  whose principal is nonexpendable and is held to the benefit of the college and invested  to provide earnings for institutional use as reported within a college's independently audited financial statements as submitted to the dormitory authority. Such total shall  exclude  assets  whose  principal supports  employee  annuity or pension costs, or assets whose purpose is restricted to the support of the current operations of the college.  (e) "Full-time equivalent students" shall mean a college's final  fall full-time  equivalent enrollment for the two thousand three-two thousand four academic year as published by the state education department.  (f) "Independent college" shall mean each  independent  not-for-profit institution  of  higher  education,  as  defined  in  subdivision two of section sixty-four hundred one of the education law.  (g) "Non-state funds" shall mean any funds received  no  earlier  than one  hundred  eighty  days  before  the  effective date of this section, except state funds, accessible by the college for the project including, but not limited to, federal  funds,  local  funds,  private  funds,  and in-kind contributions provided, however that public colleges may not use funds  resulting  from  the  imposition  of  student  tuition or fees as non-state funds.  (h) "Project" shall  mean  the  design,  acquisition,  reconstruction, rehabilitation,  or  equipping of a facility on or near a college campus within the state of New York, including  critical  academic  facilities, economic  development and/or high technology projects, and urban renewal and/or  historical  preservation  projects  that   would   enhance   the programmatic  offerings  or  the  student life at the college or provide economic development benefits  to  the  area  surrounding  such  college campus.  (i)   "Public   college"  shall  mean  each  component  of  the  state university, as defined in subdivision three  of  section  three  hundred fifty-two  of  the  education  law  and  in  subdivision  two of section sixty-three hundred one of the education law and each senior college and community college of the city university of  New  York,  as  defined  in subdivisions  four  and  five  of  section  sixty-two hundred two of the education law.  (j) "Total academic square footage amount" shall mean an amount  equal to  the product of (i) 26.25 million dollars for the state university of New York or 17.5 million dollars for the city university  of  New  York, multiplied by (ii) the eligible college's proportion of the total square footage  of  academic facilities operated by all components of the state university of New York, as defined in subdivision three of section three hundred fifty-two and in subdivision two of section sixty-three  hundred one  of  the education law or all senior colleges and community colleges of the city university of New York, as defined in subdivisions four  and five   of   section   sixty-two   hundred  two  of  the  education  law, respectively.  (k) "Total full-time equivalent amount" shall mean an amount equal  to the  product  of  (i)  78.75 million dollars for independent colleges or 52.5 million dollars for colleges of the state university of New York or thirty-five million dollars for colleges of the city university  of  New York,  multiplied by (ii) the eligible college's proportion of the total  full-time equivalent students for all eligible independent colleges, all components  of  the  state  university  of  New  York,  as  defined   in subdivision  three of section three hundred fifty-two and in subdivision two  of  section  sixty-three  hundred  one of the education law, or all senior colleges and community colleges of the  city  university  of  New York,  as  defined  in  subdivisions  four and five of section sixty-two hundred two of the education law, respectively, and calculated  from  an eligible  college's  final  fall full-time equivalent enrollment for the two thousand three--two thousand four academic year as published by  the state education department.  (l)  "Total  TAP expenditure amount" shall mean an amount equal to the product of  (i)  the  product  of  forty-five  percent  of  one  hundred seventy-five  million dollars for independent colleges or the product of twenty-five percent of one hundred five million dollars for colleges  of the  state  university of New York or the product of twenty-five percent of seventy million dollars for colleges of the city  university  of  New York,  multiplied  by (ii) an eligible college's proportion of the total funding received under section six hundred sixty-seven of the  education law  by  all  eligible independent colleges, all components of the state university of New York, as defined in subdivision three of section three hundred fifty-two and in subdivision two of section sixty-three  hundred one  of the education law, or all senior colleges and community colleges of the city university of New York, as defined in subdivisions four  and five   of   section   sixty-two   hundred  two  of  the  education  law, respectively, as estimated by the higher education services  corporation for the two thousand three-two thousand four academic year.   3. Powers, functions and duties of the New York state higher education capital  grant  board;  limitations.  (a)  The  New  York  state  higher education capital grant board shall have the power and it shall  be  its duty  to  approve or deny applications received from colleges for higher education capital matching grants. In  making  such  determination,  the board  shall  verify  that  the  criteria  set forth in paragraph (e) of subdivision four of this section have been met. If necessary, the  board may  request  additional  information  from the college when making such determination.  (b)  Within  amounts  appropriated  therefor,  the  board  is   hereby authorized  and directed to award matching capital grants totaling three hundred fifty  million  dollars.  The  public  college  sector  and  the independent  college  sector  shall  each  be eligible to receive grants totaling not more than one hundred seventy-five  million  dollars.  Each public  college  and  independent  college shall be eligible for a grant award amount as determined by the calculations pursuant  to  subdivision five  of this section. In addition, such public colleges and independent colleges shall be eligible to compete for additional funds  pursuant  to paragraph (h) of subdivision four of this section.  (c)  The  board  shall  approve  or disapprove the methodology and the resulting matching ratios developed by the dormitory authority  pursuant to paragraph (c) of subdivision four of this section.  (d)  The  board  shall approve or deny applications for waivers of the standard matching requirement under paragraph (d) of subdivision four of this section.   4. New York state higher  education  capital  matching  grant  program administration and financing.  (a)  The  dormitory  authority  is  hereby  authorized and directed to administer the New York state higher education  capital  matching  grant program.  (b) The dormitory authority shall serve as staff to the New York state higher  education  capital  matching  grant  board,  including, with the  cooperation of any other state agency, the  preparation  of  information which would assist the board in carrying out its duties.  (c)  The  dormitory authority of the state of New York shall develop a methodology to determine the required non-state funds  contribution  for colleges.  Such  methodology  shall  consider  endowment  per  full-time equivalent student and tuition and fees. Such methodology shall  require a greater contribution from those colleges with greater fiscal resources as  measured  by  endowment per full-time equivalent student and tuition and fees. For public colleges the numerator in  the  matching  ratio  of non-state  funds  to grant award amount shall not be greater than two or less than 0.5 and the denominator shall  be  equal  to  one  for  public community  colleges,  the  numerator  in the matching ratio of non-state funds to grant award amount shall not be greater than one or  less  than 0.5  and  the  denominator  shall  be  equal to one; and for independent colleges the numerator in the matching ratio of non-state funds to grant award amount shall not be greater than three or less than  0.5  and  the denominator  shall  be  equal to one. Such methodology and the resulting matching ratios shall be submitted to  the  board  for  approval  within thirty  days  after the effective date of this section and shall be made available to potential applicants once approved.  (d) The standard matching requirement for the purposes of  determining a  college's  required non-state funds contribution shall be as provided in this paragraph. For public colleges the  numerator  in  the  standard matching  requirement  of non-state funds to grant award amount shall be equal to two and the denominator  shall  be  equal  to  one  for  public community colleges the numerator in the standard matching requirement of non-state  funds  to  grant  award  amount shall be equal to one and the denominator shall be equal to one;  and  for  independent  colleges  the numerator  in  the  standard  matching requirement of non-state funds to grant award amount shall be equal to three and the denominator shall  be equal  to one. Colleges may apply for a waiver of such standard matching requirement. If such waiver is  approved  by  the  board,  the  required non-state  funds contribution shall be determined by the methodology set forth in paragraph (c) of subdivision four of this section.  (e) The dormitory authority shall develop a standard  application  for such  grants.  Such  application shall require colleges to provide, at a minimum, the following:  (i) The amount of grant  request,  such  request  not  to  exceed  the eligible grant award amount, as provided for in subdivision five of this section.   No more than three and one-half of one percent of any capital matching grant issued under this program may be allocated to any college or to any subsidiary or organization associated therewith  for  purposes which  may  include, but not be limited to, any direct or indirect costs of administering the program not contained in the application requesting such capital matching grant, provided however, that  no  monies  granted under the program shall be used to supplant any direct or indirect costs of the grant recipient;  (ii)   A  statement  that  the  proposed  project  would  enhance  the programmatic offerings or the student life at  the  college  or  provide economic development benefits to the surrounding area;  (iii)  Whether  the  project  is  eligible for funding under the state university or city university capital plan;  (iv) Whether the project has the participation and  financial  support of a consortium of colleges and/or public or private partnerships;  (v)  A  detailed description of the project, including projected costs including the sources and uses of funds, completion timeline, and  funds necessary at each stage of project completion;  (vi)  A  description  of  the  type  or types of non-state funds to be utilized and the source of such funds;  (vii)  Information  to  demonstrate  the  ability to access sufficient non-state funds to meet the matching ratio requirement, as provided  for in   paragraph   (c)  of  this  subdivision  or  the  standard  matching requirement as provided for in paragraph (d) of this subdivision;  (viii) A statement that as of the  effective  date  of  this  section, construction had not begun and equipment had not been purchased for such project;  (ix)  A  statement  whether  a  recurring  source  of revenue shall be available to support facility operations and maintenance for the project that the capital matching grant is funding; and  (x) A statement  whether,  the  project  has  received  all  necessary regulatory  approvals  or  can demonstrate a reasonable expectation that such approvals will be secured.  (f) Upon receipt  of  a  matching  grant  application,  the  dormitory authority  shall review such grant application for technical sufficiency and  compliance  with  the  application  criteria  as  provided  for  in paragraph (e) of this subdivision. If necessary, the dormitory authority may   request  additional  information  from  the  applicant.  When  the application is complete,  the  dormitory  authority  shall  submit  such application with an analysis to the capital grant board for its approval or denial.  (g)  In  order  to  be eligible for such grants, colleges must provide notification to the dormitory authority of an  intent  to  apply  for  a grant  no  later  than  March  thirty-first, two thousand seven and must apply for such grant no later  than  March  thirty-first,  two  thousand eight.  (h) If a college does not apply for a grant by March thirty-first, two thousand  eight,  funds  associated  with  such potential grant shall be awarded, on a competitive basis,  to  other  colleges.  Public  colleges shall  be  eligible to apply for unutilized public college grants within their respective systems and independent colleges shall be  eligible  to apply for unutilized independent college grants. The dormitory authority shall  develop  a  request  for  proposals  and  application process, in consultation with the board, for such grants and shall develop criteria, subject to review by the board, for the awarding of  such  grants.  Such criteria  shall incorporate the matching criteria contained in paragraph (c) of this subdivision, and  the  application  criteria  set  forth  in paragraph (e) of this subdivision. The dormitory authority shall require all  applications  in  response  to  the  request  for  proposals  to be submitted by September first, two thousand eight, and  the  board  shall act  on each application for such matching grants by November first, two thousand eight.  (i) The dormitory authority shall develop a model  contract  provision to  be used in any contract which involves a project for which a college has received a matching grant. Such provision shall indemnify  and  hold the  state  of  New  York  harmless  from any and all claims for loss or liability alleged to  have  been  caused  or  resulting  from  any  work involving such project.  (j)  (i)  The dormitory authority is hereby authorized and directed to assist in financing higher education projects by providing  to  eligible colleges  higher  education  capital  matching  grants  that  have  been approved by the New York state higher education capital  matching  grant board.  (ii)(A) Notwithstanding the provision of any general or special law to the contrary, and subject to the provisions of chapter fifty-nine of the laws of two thousand and to the making of annual appropriations therefor  by  the  legislature,  in  order  to  assist  the dormitory authority in providing such higher education capital matching grants, the director of the budget is authorized in  any  state  fiscal  year  commencing  April first,  two  thousand  four  or  any  state fiscal year thereafter for a period ending on March thirty-first, two thousand nine,  to  enter  into one  or  more service contracts, none of which shall exceed thirty years in duration, with the  dormitory  authority,  upon  such  terms  as  the director of the budget and the dormitory authority agree.  (B)  Any  service contract entered into pursuant to clause (A) of this subparagraph or any payments made  or  to  be  made  thereunder  may  be assigned  and  pledged  by  the  dormitory authority as security for its bonds, notes, or other obligations.  (C) Any such service contracts shall provide that  the  obligation  of the director of the budget or of the state to fund or to pay the amounts therein provided for shall not constitute a debt of the state within the meaning  of  any  constitutional or statutory provision in the event the dormitory authority assigns or pledges the service contract payments  as security  for its bonds, notes, or other obligations and shall be deemed executory only to the extent monies are available and that no  liability shall  be  incurred  by  the  state  beyond the monies available for the purpose, and that such obligation is subject to annual appropriations by the legislature.  (D) Any service contract or contracts entered into  pursuant  to  this subdivision  shall  provide for state commitments to provide annually to the dormitory authority a sum or sums, upon such terms and conditions as shall be deemed appropriate by the director of the budget, to  fund  the principal,  interest,  or other related payments required for any bonds, notes, or other obligations of the dormitory authority  issued  pursuant to this section.  (iii)(A)  To  obtain  funds  for  the  purposes  of  this section, the authority shall have power from time to time to issue  negotiable  bonds or notes.  Unless the context shall clearly indicate otherwise, whenever the  words  "bond" or "bonds" are used in this section, such words shall include a note or notes of the authority.  (B) The dormitory authority shall not issue any bonds or notes  in  an amount in excess of three hundred fifty million dollars for the purposes of  this  section;  excluding  bonds or notes issued to fund one or more debt service reserve funds, to pay costs of issuance of such bonds,  and bonds  or  notes issued to refund or otherwise repay such bonds or notes previously issued. Except for purposes of complying  with  the  internal revenue  code,  any  interest on bond proceeds shall only be used to pay debt service on such bonds.  (C) In computing for the purposes of clause (B) of this  subparagraph, the aggregate amount of indebtedness evidenced by bonds and notes of the dormitory  authority  issued  pursuant  to  this  title,  there shall be excluded the amount of such indebtedness represented by  such  bonds  or notes  issued to refund or otherwise repay bonds or notes; provided that the amount so excluded under this clause may exceed the principal amount of such bonds or notes that were issued to  refund  or  otherwise  repay only if the present value of the aggregate debt service on the refunding or repayment bonds or notes shall not have at the time of their issuance exceeded the present value of the aggregate debt service of the bonds or notes  they  were  issued to refund or repay, such present value in each case being calculated by  using  the  effective  interest  rate  of  the refunding  or repayment bonds or notes, which shall be that rate arrived at by doubling the semi-annual interest rate (compounded  semi-annually) necessary  to  discount  the  debt  service payments on the refunding or repayment bonds or notes from the payment date thereof to  the  date  of  issue  of the refunding or repayment bonds or notes and to the price bid therefor, or to the proceeds received by the  dormitory  authority  from the sale thereof, in each case including estimated accrued interest.  (D)  The  state  of  New  York  hereby  covenants with the purchasers, holders, and owners from time to time of  the  bonds  of  the  authority issued  pursuant  to  this  section  that  it  will  not, subject to the provisions of clause (C) of subparagraph (ii) of this paragraph, repeal, revoke, rescind, modify, or amend the provisions of this  section  which relate  to  the  making  of  annual  service  contract  payments  to the authority with respect to such bonds as to limit, impair, or impede  the rights and remedies granted to bondholders under this title or otherwise diminish the security pledged to such purchasers, holders, and owners or significantly impair the prospect of payment of any such bond.  (iv)  In  addition  to  the authority with respect to financing higher education projects provided to the dormitory authority  in  subparagraph (iii) of this paragraph, the dormitory authority is hereby authorized to finance that portion of any higher education project approved to receive a  higher  education  capital  matching  grant  that is in excess of the amount of such grant and which shall be the non-state funds  portion  of the  cost  of  such project to the same extent and under the same powers and procedures as if  such  project  were  named  in  paragraph  (b)  of subdivision two of section sixteen hundred seventy-six of this title and in subdivision one of section sixteen hundred eighty of this title.   5.  Limitation  on  awards. Colleges eligible for participation in the higher education  capital  matching  grants  program  pursuant  to  this section shall be eligible to receive a higher education capital matching grant pursuant to the following calculations:  (a)  Each  independent  college  shall  be eligible to receive a grant equal to the sum of its total full-time equivalent amount, its total TAP expenditure amount and its base grant amount; and  (b) Each public college shall be eligible to receive a grant equal  to the  sum  of  its  total  full-time  equivalent  amount,  its  total TAP expenditure amount and its total academic square footage amount.   Provided,  however,  that  an  Independent  non-profit  comprehensive, non-traditional, non-instructional assessment institution whose external degree  programs  only  validated a candidate's education experience and granted over four thousand degrees in the two thousand one--two thousand two academic year shall be eligible to receive a base grant equal to the product of (i) $17.5 million dollars; and (ii)  its  proportion  of  the total  number  of  non-associate  degrees  conferred by all colleges and universities statewide  for  the  two  thousand  one--two  thousand  two academic year as reported by the state education department.   The  dormitory authority shall calculate the amount of the grants that each independent college and each public college shall  be  eligible  to receive in accordance with the limitations set forth in this subdivision as  soon  as  practicable  but  no  more  than forty-five days after the effective  date  of  this  section  and  shall  make  such   information conveniently   available  to  the  colleges  including  by  the  use  of electronic dissemination methods.   6. Contracts. (a) Each contract  entered  into  by  a  college,  which involves  a  project  for which the college has received a capital grant award, shall be subject to the approval of the comptroller  and,  as  to form  and  manner  of execution, by the attorney general of the state of New York.  (b) Each  contract  entered  into  by  a  college  shall  include  the provision  as  provided for in paragraph (i) of subdivision four of this section, which shall indemnify and hold the state of New  York  harmless  from  any  and  all  claims  for  loss or liability alleged to have been caused or resulting from any work involving such project.  (c)  Each  contract  entered  into  by  a  public  college  or made in connection with a  capital  matching  grant  made  to  a  consortium  of colleges  that  includes  a public college regardless of which member of the consortium shall be the contracting party  shall  be  awarded  by  a competitive  process  and  shall  be  deemed  a  state  contract for the purposes of article nine of the state finance  law,  provided,  however, that  any  contract  which  would not be a state contract except for the application of this paragraph  shall  not  be  subject  to  section  one hundred thirty-five of the state finance law.  (d)  Each  contract  entered  into  by  a  public  college  or made in connection with a  capital  matching  grant  made  to  a  consortium  of colleges  that  includes  a public college regardless of which member of the consortium shall be the contracting party  shall  require  that  the work  covered by such contract shall be deemed "public work" and subject to and performed in accordance with articles eight, nine and ten of  the labor  law  and,  for the purposes of article fifteen-A of the executive law, the contracting party under such contracts shall be deemed a  state agency  as that term is defined in such article and such contracts shall be deemed state contracts within the meaning of that term as  set  forth in such article.  (e)  Independent  colleges whose contracts are not state contracts for the purposes of article nine  of  the  state  finance  law  and  article fifteen-A  of  the executive law and whose projects under such contracts do not involve public work so as to be subject to articles eight,  nine, and  ten  of the labor law, shall execute an undertaking, as a condition of receiving any capital matching  grant,  to  voluntarily  comply  with article  nine  of  the  state  finance  law,  except section one hundred thirty-five of such law, article fifteen-A of  the  executive  law,  and articles  eight, nine, and ten of the labor law so far as the same would be applicable to the contracts of a public college, and to be subject to the enforcement provisions of said articles to the same extent.   7. Reporting. (a) The New York state higher education capital matching grant board shall, annually on or before  December  first,  prepare  and submit  an  annual  report to the governor and the chair of the assembly ways and means committee and the chair of the senate finance  committee. Such  report shall contain at a minimum the following information: (i) a list of all applications filed by any college  for  a  grant  under  the higher  education  capital  grant  program  including  the  name  of the applying college, a brief description of the project, and the amount  of the  grant  requested;  (ii)  a  list of the applications granted by the board specifying the amount of the grant  approved  if  such  amount  is different from the amount applied for; and (iii) a statement showing the dollar  amount of all grants approved by the board and the dollar amount of the remaining capacity for future grants.  (b) Any eligible  institution  receiving  a  grant  pursuant  to  this article  shall  report  to  the  dormitory  authority no later than June first, two thousand seven, on  the  use  of  funding  received  and  its programmatic and economic impact. The dormitory authority shall submit a report  no  later  than November first, two thousand seven to the board, the governor, the director of the budget, the temporary president of the senate, and the speaker of the assembly on the aggregate impact  of  the higher  education  capital  matching  grant  program.  Such report shall provide information on the progress and economic impact of each project.   * NB There are 2 § 1680-j's