2023 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