N.Y. Arts and Cultural Affairs Law § 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.