NY Arts & Cult Aff L § 3.07 (2021)
2021 New York Laws ACA - Arts and Cultural Affairs Title B - Promotion of the Arts Article 3 - Council on the Arts 3.07 - State Financial Assistance for Improvement, Expansion or Rehabilitation of Existing Buildings.

§ 3.07.  State  financial  assistance  for  improvement,  expansion or rehabilitation of existing buildings. 1.  Any  other  provision  of  any other  law  to  the contrary notwithstanding, state financial assistance may be provided for up to fifty percent of the approved costs (excluding feasibility studies, plans or similar activities) of  eligible  projects for  the  rehabilitation  of  existing  buildings,  including  leasehold improvements,  by  an  eligible  nonprofit  cultural  organization,   as provided  herein. Such financial assistance may be in the form of grants and/or loans.   2. A nonprofit cultural organization may  submit  an  application  for state financial assistance for eligible projects as provided herein. The council, after review of the programmatic and fiscal needs and resources of the project and the organization, shall make a determination, subject to  the  restrictions, limitations, responsibilities and requirements of this section, as to the amount of state financial assistance in the form of a grant and/or state financial assistance in the form of a  loan,  or any  combination  thereof,  that the organization may receive, provided, however, that subject to the requirements established herein:  (a) Any financial assistance in the form of a grant  may  be  provided for  any  amount from funds appropriated specifically therefor up to and including the amount of fifty thousand dollars.  (b) Any financial assistance in the form of a  loan  may  be  provided from  the  arts  capital  revolving fund established pursuant to section ninety-seven-z of the state  finance  law  for  any  amount  up  to  and including  the  amount  of  one  hundred thousand dollars, provided that interest in any such loan shall not exceed a maximum of ten or a minimum of three percent per annum.  (c) Any combined financial assistance in the form of  a  grant  and  a loan may be provided for an amount up to and including the amount of one hundred  fifty  thousand  dollars  and  may  include any amount of state financial assistance in the form of a grant  and  any  amount  of  state financial  assistance  in  the form of a loan, as shall be determined by the council subject to the provisions of paragraphs (a) and (b) of  this subdivision and the requirements, duties and responsibilities imposed by this section.  (d)  Nothing contained herein shall be deemed to require approval of a total of fifty thousand dollars in state  financial  assistance  in  the form  of a grant, or approval of a total of one hundred thousand dollars in state financial assistance in the form of a loan, or to  prevent  the council  from approving a loan or any combination of a grant and loan in any amount, subject only to the limitation on such financial  assistance imposed by paragraphs (a) and (b) of this subdivision, and the council's determination  of the programmatic and fiscal needs and resources of the project and the organization, and other requirements  of  this  section, irrespective  of the amount of state financial assistance in the form of a grant and/or  state  financial  assistance  in  the  form  of  a  loan requested or suggested by the applicant.  (e)  The  council  may  contract  with  outside entities to effect the purposes of this paragraph and to disburse loans and receive payments on such loans.   3. (a) For the purposes of this  section,  organizations  or  eligible organizations shall mean nonprofit cultural organizations which received funding  from  the  council  in  each of the three previous state fiscal years and which own a condominium or a building or a part of a  building or which own shares representing a cooperative interest in a building or which  have entered into a lease-purchase agreement to own a building or which lease a building or space in  it,  and  which  operate  a  program therein,   provided   that   evidence   of   such  ownership,  lease  or  lease-purchase agreement shall be provided by the eligible  organization in  such  manner  and  form  as  is satisfactory to the council. Nothing contained herein shall prevent an eligible organization  from  receiving financial assistance under this section which has satisfactory occupancy agreements in a building which is owned by a local government.  (b) Eligible organizations shall not include:  (1)   public   school   districts,  their  components,  and  affiliate organizations, state agencies or departments,  or,  except  as  provided hereunder,   public   universities,   their   components  and  affiliate organizations; or  (2) the provisions of  subparagraph  one  of  this  paragraph  to  the contrary   notwithstanding,  a  public  university,  its  components  or affiliate organizations may be funded if it serves and is located  in  a rural  or minority community, as such shall be determined by the council pursuant to subdivisions seven and fifteen of this section and meets all other applicable requirements for funding under this  section,  provided that  applications  from  such  entities  for state financial assistance shall not be considered by the council prior to December thirty-first in any state fiscal year.  (c) Eligible projects shall include:  (1) improvement, expansion or rehabilitation of a  building  for  arts purposes;  (2)  improvement, expansion or rehabilitation of existing buildings to increase or assure public access;  (3) improvement or rehabilitation of  existing  buildings  for  energy conservation purposes or for such other purposes as will serve to reduce the organization's costs of operation in such building;  (4)  improvement  or  rehabilitation  of existing buildings to address known health and safety deficiencies;  (5) improvement, expansion or rehabilitation of existing buildings  to provide for handicapped accessibility;  (6)  such  other  projects  of substantive character as are in keeping with the spirit and intent of this section.  (d) No project shall be considered eligible  if  it  is  approved  for financing from any other state assistance program.   4. Each application for financial assistance shall be submitted to the council  by  the  governing  body  of  the  eligible  organization. Each application shall:  (a) demonstrate that adequate operating support and resources will  be available  at  the  completion  of the project to provide an improved or increased level of service;  (b) contain verification in such form as  may  be  acceptable  to  the council  that  the  remaining  cost  of  the project, exclusive of state financial assistance, has been or will be obtained;  (c) demonstrate that the project will be  completed  promptly  and  in accordance with the application;  (d)  either demonstrate that the operation of the organization will be made more economical or  efficient  as  a  consequence  of  approval  or demonstrate  that  health and safety concerns will be repaired or access to handicapped provided;  (e) demonstrate that the project will be conducted in accordance  with applicable federal, state and local laws and regulations;  (f)   demonstrate   that,   where   appropriate,  competitive  bidding procedures will be followed as required by law, or  provide  such  other evidence of competition as shall be satisfactory to the council;  (g)  provide an assessment of the useful life of the project, and such recommendation, analysis of needs  or  feasibility  studies  as  may  be required by the council provided, however, that for the purposes of this  section the term "useful life" shall mean such method of calculating the worth  of  a project and the amount of annual depreciation necessary for effecting contracts under this section  as  the  council  shall  require after  consultation  with the state comptroller and upon approval by the state division of the budget;  (h) demonstrate that contracts for the project  will  be  executed  in accordance with subdivision twelve of this section;  (i)  provide  such other information as may be required by the council including such guarantees as are further required by subdivisions  eight and nine of this section.   5. Each organization may submit no more than one application annually. Any  other provision of this section to the contrary notwithstanding, no organization shall receive state financial assistance under this section funding more than three years in any consecutive five-year period.   6. (a) Each  application  for  state  financial  assistance  shall  be reviewed  by  the  council  for  its merits and for the programmatic and fiscal needs and resources of the proposed  project  and  the  applicant organization.  Any  application for a project whose total cost equals or exceeds the sum of one  million  dollars  which  is  deemed  preliminary acceptable  shall be submitted by the council to the dormitory authority of the state of New York for technical review. Provided,  however,  that nothing  contained  herein shall prevent the council from submitting any application for financial assistance,  irrespective  of  the  amount  of financial  assistance  requested  or  the  total  project  cost,  to the authority for technical  review  and  recommendations  pursuant  to  the provisions of this section.  (b)  Within  thirty  days  of  the  receipt of an application from the council,  the  authority  shall  provide  the  council  with  a  written evaluation of the project which shall include the following factors:  (1)   feasibility   of   the  proposed  project  from  an  engineering standpoint;  (2) total project cost estimate;  (3) proposed project schedule;  (4) useful life  of  the  proposed  project  as  defined  pursuant  to paragraph (b) of subdivision four of this section;  (5)  such  other  factors  which  the  authority  shall  determine are applicable to its evaluation of the project.  (c)  If  within  the  thirty-day  period  the  authority  finds   more information  is necessary, the authority shall so notify the council and shall have a maximum of ninety days to complete its review.  (d) Concurrent with its approval of  any  application,  the  authority shall  include  its  recommendation as to the manner in which the design and construction of the project should be managed.  (e)  In  any  case  where  the  authority  and  the  council  and  the organization have agreed that the authority will award contracts for the design  and  construction of the project, the authority shall prepare or cause to be prepared a feasibility design  and  performance  plan  which shall   set   forth   the  terms  and  conditions  associated  with  the construction management process.  Such  plan  shall  contain  provisions relating  to the relative responsibilities of the authority, appropriate performance and surety bonds, remedies against  architects,  contractors and  sureties  deemed  to  be  in  default  in  the performance of their obligations, and, generally, the management of the construction  process in  a  professional  manner  in  accordance with prevailing construction industry standards.  (f) Should the authority fail to provide the council with an approval, disapproval or request for additional information within thirty days  of receipt  of  the  original  application  or within ninety days as may be  appropriate, the application shall be submitted to the council  for  its final approval or disapproval.  (g) If approved by the authority, the application shall be returned to the  council,  which  may  provide  final  approval  for state financial assistance.  (h) Subject to approval by the director of the division of the budget, the council shall enter into an agreement to insure that  the  authority shall  be  reimbursed for reasonable expenses incurred in fulfilling its responsibilities under this section and shall authorize payment  to  the authority out of monies earned on interest in the arts capital revolving fund established pursuant to section ninety-seven-z of the state finance law  or  from any other funds allocated by it to fulfill the purposes of this section, provided, however, that in  no  event  shall  the  council authorize payment under this paragraph an amount greater than the sum of fifty thousand dollars in any state fiscal year.   7. In approving any application, the council shall consider:  (a) the condition of the existing building;  (b)  the  recommendation  and  analysis  of  need  as  provided in the feasibility study or other documentation required by the council;  (c) the available resources for the project;  (d) the nature of the activities proposed to take place  at  the  site which is the subject of the application;  (e)  such  other  criteria  as  the  council  may  deem appropriate or necessary to the approval  of  any  application,  including  the  fiscal resources  of  the  applicant, which shall be determined after review of any one of the  prior  year's  report  of  the  following:  a  financial statement  prepared  by  an  independent certified public accountant; an annual statement of income and expenses; a federal tax return  with  all itemizations  and  breakdowns;  or a long form report from the office of charities registration; and  (f)  where  appropriate  and  in  keeping  with  the   provisions   of subdivision  fifteen  of  this  section, the needs of rural and minority communities.   8. Any other provision of law or  of  this  section  to  the  contrary notwithstanding,  state  financial  assistance  shall  not  be  provided pursuant to this section until the council has (a) considered the useful life of the eligible  project  as  such  term  is  defined  herein;  (b) determined  the  grant,  loan  or  combined  amount  of  state financial assistance to be provided; and (c) executed an agreement to provide such assistance. Such agreement shall be executed  by  the  council  and  the organization or, in the case of a leasehold or lease-purchase agreement, with   the   eligible   nonprofit   cultural   organization  and,  where appropriate, the owner of the property for which  the  eligible  project has  been proposed. Any such agreement shall provide for the creation of a lien or other security interest or such other guarantee  as  shall  be satisfactory  to the council to assure repayment of financial assistance provided under this section. Such agreement shall assure that the length of a loan shall not exceed the useful life  of  the  project  and  shall include,  in  addition  to  such  other  provisions  as  the council may require, the following:  (i) the amount of financial assistance, the terms and conditions  upon which  it  is  provided, the useful life of the eligible project and the method  of  depreciating  the  eligible  project  for  purposes  of  the repayment provisions of the agreement;  (ii) a requirement that the organization provide the council with such prior  notice  as the council may require of a sale or other disposition of the subject property or of a termination of the lease  prior  to  the  expiration of such useful life or the expiration of the term of any loan made hereunder;  (iii)  a requirement that, in the event of such sale or disposition of the property or termination of the lease prior to the expiration of  the useful  life  or  the expiration of the term of any loan made hereunder, the owner of the subject property or such other guarantor shall repay to the council an amount equal to that portion of the approved costs of the project financed by financial assistance provided  under  this  section, less  accumulated depreciation, as of the date of such sale, disposition or termination, or, in the case of a loan or a combination  of  a  grant and loan, repay an amount equal to the unpaid balance of the loan;  (iv)  a requirement that, upon a finding by the council that a project has not been completed, or has not been completed in accordance with the terms of the agreement, the full  amount  of  the  financial  assistance provided in the form of a grant, or the outstanding balance of financial assistance provided in the form of a loan shall be repaid to the council by  the  guarantor,  provided  that  upon a showing of good cause by the organization the council shall grant an extension of up to  ninety  days from  the date of such finding to allow the organization to complete the project in accordance with the  terms  of  the  agreement,  and  further provided that the council shall provide no more than two such extensions from  the date of such finding to allow the organization to complete the project in accordance with the terms of the agreement.   9. In any case in which state financial assistance is provided in  the form  of  a  loan or as a combination of a grant and loan, the following shall additionally be included in the agreement:  (i) a requirement that the organization shall obtain, in  addition  to such  other  security  as  may  be  required  by the council or by other provisions of law, an undertaking or surety  bond  from  any  person  or entity  which  has  contracted to perform work on an approved project to assure the faithful performance of such project and/or  a  labor  and/or material bond as may be appropriate; and  (ii)  a requirement that the authority shall provide such construction management services as have been specified and  agreed  to  pursuant  to paragraphs (d) and (e) of subdivision six of this section.   10. Any lien, security interest or guarantee established created under the  provisions of subdivision eight or nine of this section shall be in addition to any other rights or obligations of  the  council  under  the provisions of the lien law or any other law.   11.  The  council  shall  cause  to be filed and to be recorded in the office of the county clerk in the county where the subject  property  is situated  any  lien  or  other  security  interest as may be required to assure  repayment  of  financial  assistance  in  accordance  with   the provisions  of  this  section.  The department of law shall provide such assistance as the council may require to create  and  perfect  any  such liens or other security interests.   12. (a) All contracts for design, construction, services and materials pursuant to this section of whatever nature and all documents soliciting bids  or  proposals  therefor  shall  contain  or  make reference to the following provisions:  (i) That the contractor will not  discriminate  against  employees  or applicants  for  employment  because  of  race,  creed,  color, national origin, sex, age, disability, or marital status, and will  undertake  or continue existing programs of affirmative action to ensure that minority group   persons   and  women  are  afforded  equal  opportunity  without discrimination. Such programs shall include,  but  not  be  limited  to, recruitment, employment, job assignment, promotion, upgrading, demotion, transfer,   layoff,   termination,  rates  of  pay  or  other  forms  of  compensation, and  selection  for  training  and  retraining,  including apprenticeship and on-the-job training;  (ii)  That  the  contractor shall request any employment agency, labor union, or authorized representative of  workers  with  which  it  has  a collective  bargaining  or other agreement or understanding and which is involved in the  performance  of  the  contract  to  furnish  a  written statement  that  it will not discriminate because of race, creed, color, national origin, sex, age, disability or  marital  status  and  it  will cooperate   in   the  implementation  of  the  contractor's  obligations hereunder;  (iii)  That  the  contractor  will  state,  in  any  solicitations  or advertisements for employees placed by or on behalf of the contractor in the  performance  of the contract, that all qualified applicants will be afforded equal employment opportunity without discrimination because  of race,  creed,  color,  national  origin, sex, age, disability or marital status;  (iv) That the contractor will include the provisions of  subparagraphs (i)  through  (iii)  of  this paragraph in every subcontract or purchase order in such a manner that such provisions will be  binding  upon  each subcontractor  or  vendor as to its work in connection with the contract with the agency.  (b) The council shall establish appropriate measures,  procedures  and guidelines  to  ensure  that  contractors  and  subcontractors undertake meaningful programs to  employ  and  promote  qualified  minority  group members  and  women.  Such  procedures may require after notice in a bid solicitation,  the  submission  of  a  minority  and   women   workforce utilization  program  prior to the award of any contract, or at any time thereafter,  and  may  require  the  submission  of  compliance  reports relating   to   the   operation  and  implementation  of  any  workforce utilization program adopted hereunder. The council may take  appropriate action,  including  the  impositions  of sanctions for non-compliance to effectuate the provisions of this  subdivision  and  the  monitoring  of compliance with this subdivision.  (c)  (i)  In  the  performance  of  projects pursuant to this section, minority  and  women-owned  business  enterprises  shall  be  given  the opportunity  for meaningful participation. For purposes hereof, minority business enterprise shall mean any business enterprise which is at least fifty-one per centum owned by, or  in  the  case  of  a  publicly  owned business,  at  least  fifty-one  per centum of the stock or other voting interest is owned by citizens  or  permanent  resident  aliens  who  are Black,  Hispanic,  Asian,  American Indian, Pacific Islander, or Alaskan native, and such ownership interest is real, substantial and  continuing and  has  the authority to independently control the day to day business decisions of the entity for at least one year; and women-owned  business enterprise  shall  mean  any  business  enterprise  which  is  at  least fifty-one per centum owned by, or  in  the  case  of  a  publicly  owned business,  at  least  fifty-one  per centum of the stock to other voting interests of which is owned by citizens or permanent resident aliens who are  women,  and  such  ownership  interest  is  real,  substantial  and continuing and has the authority to independently control the day to day business decisions of the entity for at least one year.   The provisions of this subdivision shall not be construed to limit the ability of any minority business enterprise to bid on any contract.  (ii)  In  order  to  implement the requirements and objectives of this section, the council shall request, as appropriate,  the  assistance  of other  state  agencies  to  monitor  the  contractors'  compliance  with provisions hereof, provide assistance in obtaining  competing  qualified minority  and  women-owned  business  enterprises  to  perform contracts  proposed to be awarded, and take other appropriate measures  to  improve the  access  of  minority  and women-owned business enterprises to these contracts.   13.  In  approving  applications pursuant to this section, the council shall seek to insure that:  (a) sixty percent of the funds appropriated pursuant to  this  section and  made  available  for  grants,  and  sixty percent of the funds made available for loans shall be made available  in  such  a  manner  as  to insure  that  the ratio of the amount received within each county to the whole of the  financial  assistance  made  available  pursuant  to  this paragraph  is no greater than the ratio of the population of such county to the population of the state, provided;  (b)  notwithstanding  the  provisions  of  paragraph   (a)   of   this subdivision the council shall make such additional allocations for rural and  minority  communities  as  to  insure  that  the  needs of cultural development are met; and  (c) any funds made available pursuant to paragraph (a) or (b) of  this subdivision  which,  by  December thirty-first of the year in which this section shall have become a law, and October thirty-first of  each  year thereafter are declined by or which cannot be used by such organizations within  such  counties,  and/or  such  communities,  as  such  shall  be determined by the council, shall be made  available  to  other  eligible nonprofit cultural organizations for eligible projects.   14.  Any  other  provision  of this section or of any other law to the contrary notwithstanding, the council shall provide a reasonable  amount not  exceeding  seven  and  one-half  percent  of the funds appropriated pursuant to this section to organizations located in rural  or  minority communities,  as  such  shall  be  determined  by the council, to obtain technical and/or financial assistance necessary to bring  a  project  to fruition,   provided,  however  that  this  subdivision  shall  only  be effective until March thirty-first, nineteen hundred eighty-nine.   15. The council shall  establish  a  written  policy  recognizing  the importance  of  and  making provision to further cultural development in rural and minority communities, as  such  shall  be  determined  by  the council.  Copies  of  the  council  policy concerning minority and rural cultural development shall be provided to the  senate  finance  and  the assembly ways and means committees.   16.  To  insure  effective  evaluation  of applications made to it for financial assistance under this section at  least  three  or  one-fourth whichever is less of the persons designated by the chairman to provide a review  of  such  application  shall be licensed professional engineers. Such engineers shall be chosen for their expertise  in  the  disciplines critical  to the design process including but not limited to structural, mechanical and electrical and acoustical. The  recommendations  made  by such   engineers   concerning   each  application  shall  be  considered specifically and apart from the reviews of any other persons  designated to  provide  a  review of such applications, and, any other provision of any other law to the contrary notwithstanding,  such  engineers  may  be designated  to  conduct  audits or may be retained as consultants by the council. Nothing contained herein shall prevent the council from meeting the requirements of this subdivision by retaining an engineering firm as a consultant. Nothing contained in this subdivision shall be  deemed  to affect  quorum  requirements of any review group or panel established by the chairman to review such applications, or to require the presence  of all  of such engineers at each such meeting of each such review group or panel. The council shall establish appropriate quorum  requirements  for this panel or review group.    17. In the event an eligible organization fails to make a payment on a loan or fails to make any other payment required under the provisions of this  section,  the council shall inform the comptroller of such failure and of the amount overdue, which amount the comptroller may recover from any  payments due from the state to the eligible organization, including local assistance payments.   18. The council shall  adopt  guidelines  within  sixty  days  of  the effective   date  of  this  section,  and  shall  promulgate  rules  and regulations  not  later   than   September   first,   nineteen   hundred eighty-eight  as  are necessary to carry out the purposes and provisions of this section. In addition to any other requirements set forth by this section, the council shall, in establishing such guidelines,  rules  and regulations,  delimit  the  application  process, provide for an appeals procedure, establish the written policy required by subdivision  fifteen of this section and establish procedures for the recoupment of financial assistance  provided in the event that a project is not completed or not completed as proposed by the  applicant  organization.  Copies  of  such rules and regulations shall be provided at least sixty days prior to the time  they  shall  be  effective to the senate finance committee and the assembly ways and means committee.   19. The council shall report to the governor, the temporary  president of  the  senate,  the  speaker of the assembly, the chairs of the senate finance committee and assembly ways and means committee not  later  than January  fifteenth  of each year concerning the amounts appropriated and expended pursuant to this section, the number of applications  received, the  total amount of financial assistance requested, the total number of applications funded, the amount of  funding  provided,  and  such  other information  as  the  chairman  shall  deem  appropriate,  including any recommendations for program improvement, recommendations for  increasing the total amount of funding from state and nonstate sources available to increase  total  funds  for  projects available to the arts and cultural community  of  this  state,  in  particular  for  rural   and   minority communities,  and  identification of and proposals for removing barriers or limits faced by communities in accessing the program or in maximizing use of funds provided hereunder.