§ 1680-J — New York state higher education capital matching grant board; creation; procedure

* § 1680-j. New York state higher education capital matching grant\nboard; creation; procedure. 1. Creation. (a) The New York state higher\neducation capital matching grant board is hereby created to have and\nexercise the powers, duties and prerogatives provided by the provisions\nof this section and any other provision of law. The board shall remain\nin existence during the period of the New York state higher education\ncapital matching grant program from the effective date of this section\nthrough March thirty-first, two thousand nine, or the date on which the\nlast of the funds available for grants under this section shall have\nbeen disbursed, whichever is earlier; provided, however, that the\ntermination of the existence of the board shall not effect the power and\nauthority of the dormitory authority to perform its obligations with\nrespect to any bonds, notes, or other indebtedness issued or incurred\npursuant to authority granted in this section.\n (b) The membership of the board shall consist of three persons\nappointed by the governor, of which one shall be upon the recommendation\nof the temporary president of the senate and one upon the recommendation\nof the speaker of the assembly. The term of the members first appointed\nshall continue until March thirty-first, two thousand five, and\nthereafter their successors shall serve for a term of one year ending on\nMarch thirty-first in each year. Upon recommendation of the nominating\nparty, the governor shall replace any member in accordance with the\nprovision contained in this subdivision for the appointment of members.\nThe members of the board shall vote among themselves to determine who\nshall serve as chair. The board shall act by unanimous vote of the\nmembers of the board. Any determination of the board shall be evidenced\nby a certification thereof executed by all the members. Each member of\nthe board shall be entitled to designate a representative to attend\nmeetings of the board on the designating member's behalf, and to vote or\notherwise act on the designating member's behalf in the designating\nmember's absence. Notice of such designation shall be furnished in\nwriting to the board by the designating member. A representative shall\nserve at the pleasure of the designating member during the member's term\nof office. A representative shall not be authorized to delegate any of\nhis or her duties or functions to any other person.\n (c) Every officer, employee, or member of a governing board or other\nboard of any college or group or association of colleges, and every New\nYork state regent, every officer or employee of the board of regents or\nthe department of education and every trustee, officer or employee of\nthe state university of New York or the city university of New York\nshall be ineligible for appointment as a member, representative,\nofficer, employee or agent of the board.\n (d) The members of the board shall serve without salary or per diem\nallowance but shall be entitled to reimbursement for actual and\nnecessary expenses incurred in the performance of official duties\npursuant to this section or other provision of law, provided however\nthat such members and representatives are not, at the time such expenses\nare incurred, public officers or employees otherwise entitled to such\nreimbursement.\n (e) The members, their representatives, officers and staff to the\nboard shall be deemed employees within the meaning of section seventeen\nof the public officers law.\n 2. Definitions. For the purposes of this section, the following terms\nshall have the respective meanings:\n (a) "Base grant amount" shall mean a grant equal to $17.5 million\ndistributed equally among independent colleges, provided however that\nfor an eligible independent college with a final fall full-time\nequivalent enrollment for the two thousand three--two thousand four\nacademic year as published by the state education department of less\nthan one hundred final full-time equivalent students the base grant\namount shall be one hundred thousand dollars.\n (b) "Board" shall mean the New York state higher education capital\nmatching grant board created by paragraph (a) of subdivision one of this\nsection.\n (c) "College" shall mean a public or independent college.\n (d) "Endowment" shall mean the total unrestricted assets whose\nprincipal is nonexpendable and is held to the benefit of the college and\ninvested to provide earnings for institutional use as reported within a\ncollege's independently audited financial statements as submitted to the\ndormitory authority. Such total shall exclude assets whose principal\nsupports employee annuity or pension costs, or assets whose purpose is\nrestricted to the support of the current operations of the college.\n (e) "Full-time equivalent students" shall mean a college's final fall\nfull-time equivalent enrollment for the two thousand three-two thousand\nfour academic year as published by the state education department.\n (f) "Independent college" shall mean each independent not-for-profit\ninstitution of higher education, as defined in subdivision two of\nsection sixty-four hundred one of the education law.\n (g) "Non-state funds" shall mean any funds received no earlier than\none hundred eighty days before the effective date of this section,\nexcept state funds, accessible by the college for the project including,\nbut not limited to, federal funds, local funds, private funds, and\nin-kind contributions provided, however that public colleges may not use\nfunds resulting from the imposition of student tuition or fees as\nnon-state funds.\n (h) "Project" shall mean the design, acquisition, reconstruction,\nrehabilitation, or equipping of a facility on or near a college campus\nwithin the state of New York, including critical academic facilities,\neconomic development and/or high technology projects, and urban renewal\nand/or historical preservation projects that would enhance the\nprogrammatic offerings or the student life at the college or provide\neconomic development benefits to the area surrounding such college\ncampus.\n (i) "Public college" shall mean each component of the state\nuniversity, as defined in subdivision three of section three hundred\nfifty-two of the education law and in subdivision two of section\nsixty-three hundred one of the education law and each senior college and\ncommunity college of the city university of New York, as defined in\nsubdivisions four and five of section sixty-two hundred two of the\neducation law.\n (j) "Total academic square footage amount" shall mean an amount equal\nto the product of (i) 26.25 million dollars for the state university of\nNew York or 17.5 million dollars for the city university of New York,\nmultiplied by (ii) the eligible college's proportion of the total square\nfootage of academic facilities operated by all components of the state\nuniversity of New York, as defined in subdivision three of section three\nhundred fifty-two and in subdivision two of section sixty-three hundred\none of the education law or all senior colleges and community colleges\nof the city university of New York, as defined in subdivisions four and\nfive of section sixty-two hundred two of the education law,\nrespectively.\n (k) "Total full-time equivalent amount" shall mean an amount equal to\nthe product of (i) 78.75 million dollars for independent colleges or\n52.5 million dollars for colleges of the state university of New York or\nthirty-five million dollars for colleges of the city university of New\nYork, multiplied by (ii) the eligible college's proportion of the total\nfull-time equivalent students for all eligible independent colleges, all\ncomponents of the state university of New York, as defined in\nsubdivision three of section three hundred fifty-two and in subdivision\ntwo of section sixty-three hundred one of the education law, or all\nsenior colleges and community colleges of the city university of New\nYork, as defined in subdivisions four and five of section sixty-two\nhundred two of the education law, respectively, and calculated from an\neligible college's final fall full-time equivalent enrollment for the\ntwo thousand three--two thousand four academic year as published by the\nstate education department.\n (l) "Total TAP expenditure amount" shall mean an amount equal to the\nproduct of (i) the product of forty-five percent of one hundred\nseventy-five million dollars for independent colleges or the product of\ntwenty-five percent of one hundred five million dollars for colleges of\nthe state university of New York or the product of twenty-five percent\nof seventy million dollars for colleges of the city university of New\nYork, multiplied by (ii) an eligible college's proportion of the total\nfunding received under section six hundred sixty-seven of the education\nlaw by all eligible independent colleges, all components of the state\nuniversity of New York, as defined in subdivision three of section three\nhundred fifty-two and in subdivision two of section sixty-three hundred\none of the education law, or all senior colleges and community colleges\nof the city university of New York, as defined in subdivisions four and\nfive of section sixty-two hundred two of the education law,\nrespectively, as estimated by the higher education services corporation\nfor the two thousand three-two thousand four academic year.\n 3. Powers, functions and duties of the New York state higher education\ncapital grant board; limitations. (a) The New York state higher\neducation capital grant board shall have the power and it shall be its\nduty to approve or deny applications received from colleges for higher\neducation capital matching grants. In making such determination, the\nboard shall verify that the criteria set forth in paragraph (e) of\nsubdivision four of this section have been met. If necessary, the board\nmay request additional information from the college when making such\ndetermination.\n (b) Within amounts appropriated therefor, the board is hereby\nauthorized and directed to award matching capital grants totaling three\nhundred fifty million dollars. The public college sector and the\nindependent college sector shall each be eligible to receive grants\ntotaling not more than one hundred seventy-five million dollars. Each\npublic college and independent college shall be eligible for a grant\naward amount as determined by the calculations pursuant to subdivision\nfive of this section. In addition, such public colleges and independent\ncolleges shall be eligible to compete for additional funds pursuant to\nparagraph (h) of subdivision four of this section.\n (c) The board shall approve or disapprove the methodology and the\nresulting matching ratios developed by the dormitory authority pursuant\nto paragraph (c) of subdivision four of this section.\n (d) The board shall approve or deny applications for waivers of the\nstandard matching requirement under paragraph (d) of subdivision four of\nthis section.\n 4. New York state higher education capital matching grant program\nadministration and financing.\n (a) The dormitory authority is hereby authorized and directed to\nadminister the New York state higher education capital matching grant\nprogram.\n (b) The dormitory authority shall serve as staff to the New York state\nhigher education capital matching grant board, including, with the\ncooperation of any other state agency, the preparation of information\nwhich would assist the board in carrying out its duties.\n (c) The dormitory authority of the state of New York shall develop a\nmethodology to determine the required non-state funds contribution for\ncolleges. Such methodology shall consider endowment per full-time\nequivalent student and tuition and fees. Such methodology shall require\na greater contribution from those colleges with greater fiscal resources\nas measured by endowment per full-time equivalent student and tuition\nand fees. For public colleges the numerator in the matching ratio of\nnon-state funds to grant award amount shall not be greater than two or\nless than 0.5 and the denominator shall be equal to one for public\ncommunity colleges, the numerator in the matching ratio of non-state\nfunds to grant award amount shall not be greater than one or less than\n0.5 and the denominator shall be equal to one; and for independent\ncolleges the numerator in the matching ratio of non-state funds to grant\naward amount shall not be greater than three or less than 0.5 and the\ndenominator shall be equal to one. Such methodology and the resulting\nmatching ratios shall be submitted to the board for approval within\nthirty days after the effective date of this section and shall be made\navailable to potential applicants once approved.\n (d) The standard matching requirement for the purposes of determining\na college's required non-state funds contribution shall be as provided\nin this paragraph. For public colleges the numerator in the standard\nmatching requirement of non-state funds to grant award amount shall be\nequal to two and the denominator shall be equal to one for public\ncommunity colleges the numerator in the standard matching requirement of\nnon-state funds to grant award amount shall be equal to one and the\ndenominator shall be equal to one; and for independent colleges the\nnumerator in the standard matching requirement of non-state funds to\ngrant award amount shall be equal to three and the denominator shall be\nequal to one. Colleges may apply for a waiver of such standard matching\nrequirement. If such waiver is approved by the board, the required\nnon-state funds contribution shall be determined by the methodology set\nforth in paragraph (c) of subdivision four of this section.\n (e) The dormitory authority shall develop a standard application for\nsuch grants. Such application shall require colleges to provide, at a\nminimum, the following:\n (i) The amount of grant request, such request not to exceed the\neligible grant award amount, as provided for in subdivision five of this\nsection. No more than three and one-half of one percent of any capital\nmatching grant issued under this program may be allocated to any college\nor to any subsidiary or organization associated therewith for purposes\nwhich may include, but not be limited to, any direct or indirect costs\nof administering the program not contained in the application requesting\nsuch capital matching grant, provided however, that no monies granted\nunder the program shall be used to supplant any direct or indirect costs\nof the grant recipient;\n (ii) A statement that the proposed project would enhance the\nprogrammatic offerings or the student life at the college or provide\neconomic development benefits to the surrounding area;\n (iii) Whether the project is eligible for funding under the state\nuniversity or city university capital plan;\n (iv) Whether the project has the participation and financial support\nof a consortium of colleges and/or public or private partnerships;\n (v) A detailed description of the project, including projected costs\nincluding the sources and uses of funds, completion timeline, and funds\nnecessary at each stage of project completion;\n (vi) A description of the type or types of non-state funds to be\nutilized and the source of such funds;\n (vii) Information to demonstrate the ability to access sufficient\nnon-state funds to meet the matching ratio requirement, as provided for\nin paragraph (c) of this subdivision or the standard matching\nrequirement as provided for in paragraph (d) of this subdivision;\n (viii) A statement that as of the effective date of this section,\nconstruction had not begun and equipment had not been purchased for such\nproject;\n (ix) A statement whether a recurring source of revenue shall be\navailable to support facility operations and maintenance for the project\nthat the capital matching grant is funding; and\n (x) A statement whether, the project has received all necessary\nregulatory approvals or can demonstrate a reasonable expectation that\nsuch approvals will be secured.\n (f) Upon receipt of a matching grant application, the dormitory\nauthority shall review such grant application for technical sufficiency\nand compliance with the application criteria as provided for in\nparagraph (e) of this subdivision. If necessary, the dormitory authority\nmay request additional information from the applicant. When the\napplication is complete, the dormitory authority shall submit such\napplication with an analysis to the capital grant board for its approval\nor denial.\n (g) In order to be eligible for such grants, colleges must provide\nnotification to the dormitory authority of an intent to apply for a\ngrant no later than March thirty-first, two thousand seven and must\napply for such grant no later than March thirty-first, two thousand\neight.\n (h) If a college does not apply for a grant by March thirty-first, two\nthousand eight, funds associated with such potential grant shall be\nawarded, on a competitive basis, to other colleges. Public colleges\nshall be eligible to apply for unutilized public college grants within\ntheir respective systems and independent colleges shall be eligible to\napply for unutilized independent college grants. The dormitory authority\nshall develop a request for proposals and application process, in\nconsultation with the board, for such grants and shall develop criteria,\nsubject to review by the board, for the awarding of such grants. Such\ncriteria shall incorporate the matching criteria contained in paragraph\n(c) of this subdivision, and the application criteria set forth in\nparagraph (e) of this subdivision. The dormitory authority shall require\nall applications in response to the request for proposals to be\nsubmitted by September first, two thousand eight, and the board shall\nact on each application for such matching grants by November first, two\nthousand eight.\n (i) The dormitory authority shall develop a model contract provision\nto be used in any contract which involves a project for which a college\nhas received a matching grant. Such provision shall indemnify and hold\nthe state of New York harmless from any and all claims for loss or\nliability alleged to have been caused or resulting from any work\ninvolving such project.\n (j) (i) The dormitory authority is hereby authorized and directed to\nassist in financing higher education projects by providing to eligible\ncolleges higher education capital matching grants that have been\napproved by the New York state higher education capital matching grant\nboard.\n (ii)(A) Notwithstanding the provision of any general or special law to\nthe contrary, and subject to the provisions of chapter fifty-nine of the\nlaws of two thousand and to the making of annual appropriations therefor\nby the legislature, in order to assist the dormitory authority in\nproviding such higher education capital matching grants, the director of\nthe budget is authorized in any state fiscal year commencing April\nfirst, two thousand four or any state fiscal year thereafter for a\nperiod ending on March thirty-first, two thousand nine, to enter into\none or more service contracts, none of which shall exceed thirty years\nin duration, with the dormitory authority, upon such terms as the\ndirector of the budget and the dormitory authority agree.\n (B) Any service contract entered into pursuant to clause (A) of this\nsubparagraph or any payments made or to be made thereunder may be\nassigned and pledged by the dormitory authority as security for its\nbonds, notes, or other obligations.\n (C) Any such service contracts shall provide that the obligation of\nthe director of the budget or of the state to fund or to pay the amounts\ntherein provided for shall not constitute a debt of the state within the\nmeaning of any constitutional or statutory provision in the event the\ndormitory authority assigns or pledges the service contract payments as\nsecurity for its bonds, notes, or other obligations and shall be deemed\nexecutory only to the extent monies are available and that no liability\nshall be incurred by the state beyond the monies available for the\npurpose, and that such obligation is subject to annual appropriations by\nthe legislature.\n (D) Any service contract or contracts entered into pursuant to this\nsubdivision shall provide for state commitments to provide annually to\nthe dormitory authority a sum or sums, upon such terms and conditions as\nshall be deemed appropriate by the director of the budget, to fund the\nprincipal, interest, or other related payments required for any bonds,\nnotes, or other obligations of the dormitory authority issued pursuant\nto this section.\n (iii)(A) To obtain funds for the purposes of this section, the\nauthority shall have power from time to time to issue negotiable bonds\nor notes. Unless the context shall clearly indicate otherwise, whenever\nthe words "bond" or "bonds" are used in this section, such words shall\ninclude a note or notes of the authority.\n (B) The dormitory authority shall not issue any bonds or notes in an\namount in excess of three hundred fifty million dollars for the purposes\nof this section; excluding bonds or notes issued to fund one or more\ndebt service reserve funds, to pay costs of issuance of such bonds, and\nbonds or notes issued to refund or otherwise repay such bonds or notes\npreviously issued. Except for purposes of complying with the internal\nrevenue code, any interest on bond proceeds shall only be used to pay\ndebt service on such bonds.\n (C) In computing for the purposes of clause (B) of this subparagraph,\nthe aggregate amount of indebtedness evidenced by bonds and notes of the\ndormitory authority issued pursuant to this title, there shall be\nexcluded the amount of such indebtedness represented by such bonds or\nnotes issued to refund or otherwise repay bonds or notes; provided that\nthe amount so excluded under this clause may exceed the principal amount\nof such bonds or notes that were issued to refund or otherwise repay\nonly if the present value of the aggregate debt service on the refunding\nor repayment bonds or notes shall not have at the time of their issuance\nexceeded the present value of the aggregate debt service of the bonds or\nnotes they were issued to refund or repay, such present value in each\ncase being calculated by using the effective interest rate of the\nrefunding or repayment bonds or notes, which shall be that rate arrived\nat by doubling the semi-annual interest rate (compounded semi-annually)\nnecessary to discount the debt service payments on the refunding or\nrepayment bonds or notes from the payment date thereof to the date of\nissue of the refunding or repayment bonds or notes and to the price bid\ntherefor, or to the proceeds received by the dormitory authority from\nthe sale thereof, in each case including estimated accrued interest.\n (D) The state of New York hereby covenants with the purchasers,\nholders, and owners from time to time of the bonds of the authority\nissued pursuant to this section that it will not, subject to the\nprovisions of clause (C) of subparagraph (ii) of this paragraph, repeal,\nrevoke, rescind, modify, or amend the provisions of this section which\nrelate to the making of annual service contract payments to the\nauthority with respect to such bonds as to limit, impair, or impede the\nrights and remedies granted to bondholders under this title or otherwise\ndiminish the security pledged to such purchasers, holders, and owners or\nsignificantly impair the prospect of payment of any such bond.\n (iv) In addition to the authority with respect to financing higher\neducation projects provided to the dormitory authority in subparagraph\n(iii) of this paragraph, the dormitory authority is hereby authorized to\nfinance that portion of any higher education project approved to receive\na higher education capital matching grant that is in excess of the\namount of such grant and which shall be the non-state funds portion of\nthe cost of such project to the same extent and under the same powers\nand procedures as if such project were named in paragraph (b) of\nsubdivision two of section sixteen hundred seventy-six of this title and\nin subdivision one of section sixteen hundred eighty of this title.\n 5. Limitation on awards. Colleges eligible for participation in the\nhigher education capital matching grants program pursuant to this\nsection shall be eligible to receive a higher education capital matching\ngrant pursuant to the following calculations:\n (a) Each independent college shall be eligible to receive a grant\nequal to the sum of its total full-time equivalent amount, its total TAP\nexpenditure amount and its base grant amount; and\n (b) Each public college shall be eligible to receive a grant equal to\nthe sum of its total full-time equivalent amount, its total TAP\nexpenditure amount and its total academic square footage amount.\n Provided, however, that an Independent non-profit comprehensive,\nnon-traditional, non-instructional assessment institution whose external\ndegree programs only validated a candidate's education experience and\ngranted over four thousand degrees in the two thousand one--two thousand\ntwo academic year shall be eligible to receive a base grant equal to the\nproduct of (i) $17.5 million dollars; and (ii) its proportion of the\ntotal number of non-associate degrees conferred by all colleges and\nuniversities statewide for the two thousand one--two thousand two\nacademic year as reported by the state education department.\n The dormitory authority shall calculate the amount of the grants that\neach independent college and each public college shall be eligible to\nreceive in accordance with the limitations set forth in this subdivision\nas soon as practicable but no more than forty-five days after the\neffective date of this section and shall make such information\nconveniently available to the colleges including by the use of\nelectronic dissemination methods.\n 6. Contracts. (a) Each contract entered into by a college, which\ninvolves a project for which the college has received a capital grant\naward, shall be subject to the approval of the comptroller and, as to\nform and manner of execution, by the attorney general of the state of\nNew York.\n (b) Each contract entered into by a college shall include the\nprovision as provided for in paragraph (i) of subdivision four of this\nsection, which shall indemnify and hold the state of New York harmless\nfrom any and all claims for loss or liability alleged to have been\ncaused or resulting from any work involving such project.\n (c) Each contract entered into by a public college or made in\nconnection with a capital matching grant made to a consortium of\ncolleges that includes a public college regardless of which member of\nthe consortium shall be the contracting party shall be awarded by a\ncompetitive process and shall be deemed a state contract for the\npurposes of article nine of the state finance law, provided, however,\nthat any contract which would not be a state contract except for the\napplication of this paragraph shall not be subject to section one\nhundred thirty-five of the state finance law.\n (d) Each contract entered into by a public college or made in\nconnection with a capital matching grant made to a consortium of\ncolleges that includes a public college regardless of which member of\nthe consortium shall be the contracting party shall require that the\nwork covered by such contract shall be deemed "public work" and subject\nto and performed in accordance with articles eight, nine and ten of the\nlabor law and, for the purposes of article fifteen-A of the executive\nlaw, the contracting party under such contracts shall be deemed a state\nagency as that term is defined in such article and such contracts shall\nbe deemed state contracts within the meaning of that term as set forth\nin such article.\n (e) Independent colleges whose contracts are not state contracts for\nthe purposes of article nine of the state finance law and article\nfifteen-A of the executive law and whose projects under such contracts\ndo not involve public work so as to be subject to articles eight, nine,\nand ten of the labor law, shall execute an undertaking, as a condition\nof receiving any capital matching grant, to voluntarily comply with\narticle nine of the state finance law, except section one hundred\nthirty-five of such law, article fifteen-A of the executive law, and\narticles eight, nine, and ten of the labor law so far as the same would\nbe applicable to the contracts of a public college, and to be subject to\nthe enforcement provisions of said articles to the same extent.\n 7. Reporting. (a) The New York state higher education capital matching\ngrant board shall, annually on or before December first, prepare and\nsubmit an annual report to the governor and the chair of the assembly\nways and means committee and the chair of the senate finance committee.\nSuch report shall contain at a minimum the following information: (i) a\nlist of all applications filed by any college for a grant under the\nhigher education capital grant program including the name of the\napplying college, a brief description of the project, and the amount of\nthe grant requested; (ii) a list of the applications granted by the\nboard specifying the amount of the grant approved if such amount is\ndifferent from the amount applied for; and (iii) a statement showing the\ndollar amount of all grants approved by the board and the dollar amount\nof the remaining capacity for future grants.\n (b) Any eligible institution receiving a grant pursuant to this\narticle shall report to the dormitory authority no later than June\nfirst, two thousand seven, on the use of funding received and its\nprogrammatic and economic impact. The dormitory authority shall submit a\nreport no later than November first, two thousand seven to the board,\nthe governor, the director of the budget, the temporary president of the\nsenate, and the speaker of the assembly on the aggregate impact of the\nhigher education capital matching grant program. Such report shall\nprovide information on the progress and economic impact of each project.\n * NB There are 2 § 1680-j's\n