* § 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