§ 3.07 — State financial assistance for improvement, expansion or rehabilitation of existing buildings

New York § 3.07

• Jurisdiction: New York
• Law ACA: Arts and Cultural Affairs
• Title B: Promotion of the Arts
• Art. 3: Council On the Arts

Text

§ 3.07. State financial assistance for improvement, expansion or\nrehabilitation of existing buildings. 1. Any other provision of any\nother law to the contrary notwithstanding, state financial assistance\nmay be provided for up to fifty percent of the approved costs (excluding\nfeasibility studies, plans or similar activities) of eligible projects\nfor the rehabilitation of existing buildings, including leasehold\nimprovements, by an eligible nonprofit cultural organization, as\nprovided herein. Such financial assistance may be in the form of grants\nand/or loans.\n 2. A nonprofit cultural organization may submit an application for\nstate financial assistance for eligible projects as provided herein. The\ncouncil, after review of the programmatic and fiscal needs and resources\nof the project and the organization, shall make a determination, subject\nto the restrictions, limitations, responsibilities and requirements of\nthis section, as to the amount of state financial assistance in the form\nof a grant and/or state financial assistance in the form of a loan, or\nany combination thereof, that the organization may receive, provided,\nhowever, that subject to the requirements established herein:\n (a) Any financial assistance in the form of a grant may be provided\nfor any amount from funds appropriated specifically therefor up to and\nincluding the amount of fifty thousand dollars.\n (b) Any financial assistance in the form of a loan may be provided\nfrom the arts capital revolving fund established pursuant to section\nninety-seven-z of the state finance law for any amount up to and\nincluding the amount of one hundred thousand dollars, provided that\ninterest in any such loan shall not exceed a maximum of ten or a minimum\nof three percent per annum.\n (c) Any combined financial assistance in the form of a grant and a\nloan may be provided for an amount up to and including the amount of one\nhundred fifty thousand dollars and may include any amount of state\nfinancial assistance in the form of a grant and any amount of state\nfinancial assistance in the form of a loan, as shall be determined by\nthe council subject to the provisions of paragraphs (a) and (b) of this\nsubdivision and the requirements, duties and responsibilities imposed by\nthis section.\n (d) Nothing contained herein shall be deemed to require approval of a\ntotal of fifty thousand dollars in state financial assistance in the\nform of a grant, or approval of a total of one hundred thousand dollars\nin state financial assistance in the form of a loan, or to prevent the\ncouncil from approving a loan or any combination of a grant and loan in\nany amount, subject only to the limitation on such financial assistance\nimposed by paragraphs (a) and (b) of this subdivision, and the council's\ndetermination of the programmatic and fiscal needs and resources of the\nproject and the organization, and other requirements of this section,\nirrespective of the amount of state financial assistance in the form of\na grant and/or state financial assistance in the form of a loan\nrequested or suggested by the applicant.\n (e) The council may contract with outside entities to effect the\npurposes of this paragraph and to disburse loans and receive payments on\nsuch loans.\n 3. (a) For the purposes of this section, organizations or eligible\norganizations shall mean nonprofit cultural organizations which received\nfunding from the council in each of the three previous state fiscal\nyears and which own a condominium or a building or a part of a building\nor which own shares representing a cooperative interest in a building or\nwhich have entered into a lease-purchase agreement to own a building or\nwhich lease a building or space in it, and which operate a program\ntherein, provided that evidence of such ownership, lease or\nlease-purchase agreement shall be provided by the eligible organization\nin such manner and form as is satisfactory to the council. Nothing\ncontained herein shall prevent an eligible organization from receiving\nfinancial assistance under this section which has satisfactory occupancy\nagreements in a building which is owned by a local government.\n (b) Eligible organizations shall not include:\n (1) public school districts, their components, and affiliate\norganizations, state agencies or departments, or, except as provided\nhereunder, public universities, their components and affiliate\norganizations; or\n (2) the provisions of subparagraph one of this paragraph to the\ncontrary notwithstanding, a public university, its components or\naffiliate organizations may be funded if it serves and is located in a\nrural or minority community, as such shall be determined by the council\npursuant to subdivisions seven and fifteen of this section and meets all\nother applicable requirements for funding under this section, provided\nthat applications from such entities for state financial assistance\nshall not be considered by the council prior to December thirty-first in\nany state fiscal year.\n (c) Eligible projects shall include:\n (1) improvement, expansion or rehabilitation of a building for arts\npurposes;\n (2) improvement, expansion or rehabilitation of existing buildings to\nincrease or assure public access;\n (3) improvement or rehabilitation of existing buildings for energy\nconservation purposes or for such other purposes as will serve to reduce\nthe organization's costs of operation in such building;\n (4) improvement or rehabilitation of existing buildings to address\nknown health and safety deficiencies;\n (5) improvement, expansion or rehabilitation of existing buildings to\nprovide for handicapped accessibility;\n (6) such other projects of substantive character as are in keeping\nwith the spirit and intent of this section.\n (d) No project shall be considered eligible if it is approved for\nfinancing from any other state assistance program.\n 4. Each application for financial assistance shall be submitted to the\ncouncil by the governing body of the eligible organization. Each\napplication shall:\n (a) demonstrate that adequate operating support and resources will be\navailable at the completion of the project to provide an improved or\nincreased level of service;\n (b) contain verification in such form as may be acceptable to the\ncouncil that the remaining cost of the project, exclusive of state\nfinancial assistance, has been or will be obtained;\n (c) demonstrate that the project will be completed promptly and in\naccordance with the application;\n (d) either demonstrate that the operation of the organization will be\nmade more economical or efficient as a consequence of approval or\ndemonstrate that health and safety concerns will be repaired or access\nto handicapped provided;\n (e) demonstrate that the project will be conducted in accordance with\napplicable federal, state and local laws and regulations;\n (f) demonstrate that, where appropriate, competitive bidding\nprocedures will be followed as required by law, or provide such other\nevidence of competition as shall be satisfactory to the council;\n (g) provide an assessment of the useful life of the project, and such\nrecommendation, analysis of needs or feasibility studies as may be\nrequired by the council provided, however, that for the purposes of this\nsection the term "useful life" shall mean such method of calculating the\nworth of a project and the amount of annual depreciation necessary for\neffecting contracts under this section as the council shall require\nafter consultation with the state comptroller and upon approval by the\nstate division of the budget;\n (h) demonstrate that contracts for the project will be executed in\naccordance with subdivision twelve of this section;\n (i) provide such other information as may be required by the council\nincluding such guarantees as are further required by subdivisions eight\nand nine of this section.\n 5. Each organization may submit no more than one application annually.\nAny other provision of this section to the contrary notwithstanding, no\norganization shall receive state financial assistance under this section\nfunding more than three years in any consecutive five-year period.\n 6. (a) Each application for state financial assistance shall be\nreviewed by the council for its merits and for the programmatic and\nfiscal needs and resources of the proposed project and the applicant\norganization. Any application for a project whose total cost equals or\nexceeds the sum of one million dollars which is deemed preliminary\nacceptable shall be submitted by the council to the dormitory authority\nof the state of New York for technical review. Provided, however, that\nnothing contained herein shall prevent the council from submitting any\napplication for financial assistance, irrespective of the amount of\nfinancial assistance requested or the total project cost, to the\nauthority for technical review and recommendations pursuant to the\nprovisions of this section.\n (b) Within thirty days of the receipt of an application from the\ncouncil, the authority shall provide the council with a written\nevaluation of the project which shall include the following factors:\n (1) feasibility of the proposed project from an engineering\nstandpoint;\n (2) total project cost estimate;\n (3) proposed project schedule;\n (4) useful life of the proposed project as defined pursuant to\nparagraph (b) of subdivision four of this section;\n (5) such other factors which the authority shall determine are\napplicable to its evaluation of the project.\n (c) If within the thirty-day period the authority finds more\ninformation is necessary, the authority shall so notify the council and\nshall have a maximum of ninety days to complete its review.\n (d) Concurrent with its approval of any application, the authority\nshall include its recommendation as to the manner in which the design\nand construction of the project should be managed.\n (e) In any case where the authority and the council and the\norganization have agreed that the authority will award contracts for the\ndesign and construction of the project, the authority shall prepare or\ncause to be prepared a feasibility design and performance plan which\nshall set forth the terms and conditions associated with the\nconstruction management process. Such plan shall contain provisions\nrelating to the relative responsibilities of the authority, appropriate\nperformance and surety bonds, remedies against architects, contractors\nand sureties deemed to be in default in the performance of their\nobligations, and, generally, the management of the construction process\nin a professional manner in accordance with prevailing construction\nindustry standards.\n (f) Should the authority fail to provide the council with an approval,\ndisapproval or request for additional information within thirty days of\nreceipt of the original application or within ninety days as may be\nappropriate, the application shall be submitted to the council for its\nfinal approval or disapproval.\n (g) If approved by the authority, the application shall be returned to\nthe council, which may provide final approval for state financial\nassistance.\n (h) Subject to approval by the director of the division of the budget,\nthe council shall enter into an agreement to insure that the authority\nshall be reimbursed for reasonable expenses incurred in fulfilling its\nresponsibilities under this section and shall authorize payment to the\nauthority out of monies earned on interest in the arts capital revolving\nfund established pursuant to section ninety-seven-z of the state finance\nlaw or from any other funds allocated by it to fulfill the purposes of\nthis section, provided, however, that in no event shall the council\nauthorize payment under this paragraph an amount greater than the sum of\nfifty thousand dollars in any state fiscal year.\n 7. In approving any application, the council shall consider:\n (a) the condition of the existing building;\n (b) the recommendation and analysis of need as provided in the\nfeasibility study or other documentation required by the council;\n (c) the available resources for the project;\n (d) the nature of the activities proposed to take place at the site\nwhich is the subject of the application;\n (e) such other criteria as the council may deem appropriate or\nnecessary to the approval of any application, including the fiscal\nresources of the applicant, which shall be determined after review of\nany one of the prior year's report of the following: a financial\nstatement prepared by an independent certified public accountant; an\nannual statement of income and expenses; a federal tax return with all\nitemizations and breakdowns; or a long form report from the office of\ncharities registration; and\n (f) where appropriate and in keeping with the provisions of\nsubdivision fifteen of this section, the needs of rural and minority\ncommunities.\n 8. Any other provision of law or of this section to the contrary\nnotwithstanding, state financial assistance shall not be provided\npursuant to this section until the council has (a) considered the useful\nlife of the eligible project as such term is defined herein; (b)\ndetermined the grant, loan or combined amount of state financial\nassistance to be provided; and (c) executed an agreement to provide such\nassistance. Such agreement shall be executed by the council and the\norganization or, in the case of a leasehold or lease-purchase agreement,\nwith the eligible nonprofit cultural organization and, where\nappropriate, the owner of the property for which the eligible project\nhas been proposed. Any such agreement shall provide for the creation of\na lien or other security interest or such other guarantee as shall be\nsatisfactory to the council to assure repayment of financial assistance\nprovided under this section. Such agreement shall assure that the length\nof a loan shall not exceed the useful life of the project and shall\ninclude, in addition to such other provisions as the council may\nrequire, the following:\n (i) the amount of financial assistance, the terms and conditions upon\nwhich it is provided, the useful life of the eligible project and the\nmethod of depreciating the eligible project for purposes of the\nrepayment provisions of the agreement;\n (ii) a requirement that the organization provide the council with such\nprior notice as the council may require of a sale or other disposition\nof the subject property or of a termination of the lease prior to the\nexpiration of such useful life or the expiration of the term of any loan\nmade hereunder;\n (iii) a requirement that, in the event of such sale or disposition of\nthe property or termination of the lease prior to the expiration of the\nuseful life or the expiration of the term of any loan made hereunder,\nthe owner of the subject property or such other guarantor shall repay to\nthe council an amount equal to that portion of the approved costs of the\nproject financed by financial assistance provided under this section,\nless accumulated depreciation, as of the date of such sale, disposition\nor termination, or, in the case of a loan or a combination of a grant\nand loan, repay an amount equal to the unpaid balance of the loan;\n (iv) a requirement that, upon a finding by the council that a project\nhas not been completed, or has not been completed in accordance with the\nterms of the agreement, the full amount of the financial assistance\nprovided in the form of a grant, or the outstanding balance of financial\nassistance provided in the form of a loan shall be repaid to the council\nby the guarantor, provided that upon a showing of good cause by the\norganization the council shall grant an extension of up to ninety days\nfrom the date of such finding to allow the organization to complete the\nproject in accordance with the terms of the agreement, and further\nprovided that the council shall provide no more than two such extensions\nfrom the date of such finding to allow the organization to complete the\nproject in accordance with the terms of the agreement.\n 9. In any case in which state financial assistance is provided in the\nform of a loan or as a combination of a grant and loan, the following\nshall additionally be included in the agreement:\n (i) a requirement that the organization shall obtain, in addition to\nsuch other security as may be required by the council or by other\nprovisions of law, an undertaking or surety bond from any person or\nentity which has contracted to perform work on an approved project to\nassure the faithful performance of such project and/or a labor and/or\nmaterial bond as may be appropriate; and\n (ii) a requirement that the authority shall provide such construction\nmanagement services as have been specified and agreed to pursuant to\nparagraphs (d) and (e) of subdivision six of this section.\n 10. Any lien, security interest or guarantee established created under\nthe provisions of subdivision eight or nine of this section shall be in\naddition to any other rights or obligations of the council under the\nprovisions of the lien law or any other law.\n 11. The council shall cause to be filed and to be recorded in the\noffice of the county clerk in the county where the subject property is\nsituated any lien or other security interest as may be required to\nassure repayment of financial assistance in accordance with the\nprovisions of this section. The department of law shall provide such\nassistance as the council may require to create and perfect any such\nliens or other security interests.\n 12. (a) All contracts for design, construction, services and materials\npursuant to this section of whatever nature and all documents soliciting\nbids or proposals therefor shall contain or make reference to the\nfollowing provisions:\n (i) That the contractor will not discriminate against employees or\napplicants for employment because of race, creed, color, national\norigin, sex, age, disability, or marital status, and will undertake or\ncontinue existing programs of affirmative action to ensure that minority\ngroup persons and women are afforded equal opportunity without\ndiscrimination. Such programs shall include, but not be limited to,\nrecruitment, employment, job assignment, promotion, upgrading, demotion,\ntransfer, layoff, termination, rates of pay or other forms of\ncompensation, and selection for training and retraining, including\napprenticeship and on-the-job training;\n (ii) That the contractor shall request any employment agency, labor\nunion, or authorized representative of workers with which it has a\ncollective bargaining or other agreement or understanding and which is\ninvolved in the performance of the contract to furnish a written\nstatement that it will not discriminate because of race, creed, color,\nnational origin, sex, age, disability or marital status and it will\ncooperate in the implementation of the contractor's obligations\nhereunder;\n (iii) That the contractor will state, in any solicitations or\nadvertisements for employees placed by or on behalf of the contractor in\nthe performance of the contract, that all qualified applicants will be\nafforded equal employment opportunity without discrimination because of\nrace, creed, color, national origin, sex, age, disability or marital\nstatus;\n (iv) That the contractor will include the provisions of subparagraphs\n(i) through (iii) of this paragraph in every subcontract or purchase\norder in such a manner that such provisions will be binding upon each\nsubcontractor or vendor as to its work in connection with the contract\nwith the agency.\n (b) The council shall establish appropriate measures, procedures and\nguidelines to ensure that contractors and subcontractors undertake\nmeaningful programs to employ and promote qualified minority group\nmembers and women. Such procedures may require after notice in a bid\nsolicitation, the submission of a minority and women workforce\nutilization program prior to the award of any contract, or at any time\nthereafter, and may require the submission of compliance reports\nrelating to the operation and implementation of any workforce\nutilization program adopted hereunder. The council may take appropriate\naction, including the impositions of sanctions for non-compliance to\neffectuate the provisions of this subdivision and the monitoring of\ncompliance with this subdivision.\n (c) (i) In the performance of projects pursuant to this section,\nminority and women-owned business enterprises shall be given the\nopportunity for meaningful participation. For purposes hereof, minority\nbusiness enterprise shall mean any business enterprise which is at least\nfifty-one per centum owned by, or in the case of a publicly owned\nbusiness, at least fifty-one per centum of the stock or other voting\ninterest is owned by citizens or permanent resident aliens who are\nBlack, Hispanic, Asian, American Indian, Pacific Islander, or Alaskan\nnative, and such ownership interest is real, substantial and continuing\nand has the authority to independently control the day to day business\ndecisions of the entity for at least one year; and women-owned business\nenterprise shall mean any business enterprise which is at least\nfifty-one per centum owned by, or in the case of a publicly owned\nbusiness, at least fifty-one per centum of the stock to other voting\ninterests of which is owned by citizens or permanent resident aliens who\nare women, and such ownership interest is real, substantial and\ncontinuing and has the authority to independently control the day to day\nbusiness decisions of the entity for at least one year.\n The provisions of this subdivision shall not be construed to limit the\nability of any minority business enterprise to bid on any contract.\n (ii) In order to implement the requirements and objectives of this\nsection, the council shall request, as appropriate, the assistance of\nother state agencies to monitor the contractors' compliance with\nprovisions hereof, provide assistance in obtaining competing qualified\nminority and women-owned business enterprises to perform contracts\nproposed to be awarded, and take other appropriate measures to improve\nthe access of minority and women-owned business enterprises to these\ncontracts.\n 13. In approving applications pursuant to this section, the council\nshall seek to insure that:\n (a) sixty percent of the funds appropriated pursuant to this section\nand made available for grants, and sixty percent of the funds made\navailable for loans shall be made available in such a manner as to\ninsure that the ratio of the amount received within each county to the\nwhole of the financial assistance made available pursuant to this\nparagraph is no greater than the ratio of the population of such county\nto the population of the state, provided;\n (b) notwithstanding the provisions of paragraph (a) of this\nsubdivision the council shall make such additional allocations for rural\nand minority communities as to insure that the needs of cultural\ndevelopment are met; and\n (c) any funds made available pursuant to paragraph (a) or (b) of this\nsubdivision which, by December thirty-first of the year in which this\nsection shall have become a law, and October thirty-first of each year\nthereafter are declined by or which cannot be used by such organizations\nwithin such counties, and/or such communities, as such shall be\ndetermined by the council, shall be made available to other eligible\nnonprofit cultural organizations for eligible projects.\n 14. Any other provision of this section or of any other law to the\ncontrary notwithstanding, the council shall provide a reasonable amount\nnot exceeding seven and one-half percent of the funds appropriated\npursuant to this section to organizations located in rural or minority\ncommunities, as such shall be determined by the council, to obtain\ntechnical and/or financial assistance necessary to bring a project to\nfruition, provided, however that this subdivision shall only be\neffective until March thirty-first, nineteen hundred eighty-nine.\n 15. The council shall establish a written policy recognizing the\nimportance of and making provision to further cultural development in\nrural and minority communities, as such shall be determined by the\ncouncil. Copies of the council policy concerning minority and rural\ncultural development shall be provided to the senate finance and the\nassembly ways and means committees.\n 16. To insure effective evaluation of applications made to it for\nfinancial assistance under this section at least three or one-fourth\nwhichever is less of the persons designated by the chairman to provide a\nreview of such application shall be licensed professional engineers.\nSuch engineers shall be chosen for their expertise in the disciplines\ncritical to the design process including but not limited to structural,\nmechanical and electrical and acoustical. The recommendations made by\nsuch engineers concerning each application shall be considered\nspecifically and apart from the reviews of any other persons designated\nto provide a review of such applications, and, any other provision of\nany other law to the contrary notwithstanding, such engineers may be\ndesignated to conduct audits or may be retained as consultants by the\ncouncil. Nothing contained herein shall prevent the council from meeting\nthe requirements of this subdivision by retaining an engineering firm as\na consultant. Nothing contained in this subdivision shall be deemed to\naffect quorum requirements of any review group or panel established by\nthe chairman to review such applications, or to require the presence of\nall of such engineers at each such meeting of each such review group or\npanel. The council shall establish appropriate quorum requirements for\nthis panel or review group.\n 17. In the event an eligible organization fails to make a payment on a\nloan or fails to make any other payment required under the provisions of\nthis section, the council shall inform the comptroller of such failure\nand of the amount overdue, which amount the comptroller may recover from\nany payments due from the state to the eligible organization, including\nlocal assistance payments.\n 18. The council shall adopt guidelines within sixty days of the\neffective date of this section, and shall promulgate rules and\nregulations not later than September first, nineteen hundred\neighty-eight as are necessary to carry out the purposes and provisions\nof this section. In addition to any other requirements set forth by this\nsection, the council shall, in establishing such guidelines, rules and\nregulations, delimit the application process, provide for an appeals\nprocedure, establish the written policy required by subdivision fifteen\nof this section and establish procedures for the recoupment of financial\nassistance provided in the event that a project is not completed or not\ncompleted as proposed by the applicant organization. Copies of such\nrules and regulations shall be provided at least sixty days prior to the\ntime they shall be effective to the senate finance committee and the\nassembly ways and means committee.\n 19. The council shall report to the governor, the temporary president\nof the senate, the speaker of the assembly, the chairs of the senate\nfinance committee and assembly ways and means committee not later than\nJanuary fifteenth of each year concerning the amounts appropriated and\nexpended pursuant to this section, the number of applications received,\nthe total amount of financial assistance requested, the total number of\napplications funded, the amount of funding provided, and such other\ninformation as the chairman shall deem appropriate, including any\nrecommendations for program improvement, recommendations for increasing\nthe total amount of funding from state and nonstate sources available to\nincrease total funds for projects available to the arts and cultural\ncommunity of this state, in particular for rural and minority\ncommunities, and identification of and proposals for removing barriers\nor limits faced by communities in accessing the program or in maximizing\nuse of funds provided hereunder.\n