2023 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.