Creates the New York state broadband development authority; details the purposes and powers of the authority; determines the make-up of the members of the board for the authority; authorizes the authority to issue bonds or notes; creates the broadband development authority reserve capital account and the broadband development authority capital reserve fund; requires the authority to be subject to a code of ethics; requires that contracts negotiated by the authority comply with section 135 of the state finance law; provides that projects created under this act shall be considered tax exempt.
STATE OF NEW YORK
________________________________________________________________________
1894
2009-2010 Regular Sessions
IN ASSEMBLY
January 14, 2009
___________
Introduced by M. of A. MORELLE, DESTITO, CAHILL, CLARK, CYMBROWITZ,
BOYLAND, DelMONTE, BENJAMIN, BING, BRENNAN, COLTON, KOON -- Multi-
Sponsored by -- M. of A. GUNTHER, MAGEE, McENENY, SCHIMMINGER, WRIGHT
-- read once and referred to the Committee on Corporations, Authori-
ties and Commissions
AN ACT in relation to enacting the New York state broadband development
authority act; to amend the state finance law, in relation to funds
and accounts of the authority; and providing for the repeal of such
provisions upon expiration thereof
The People of the State of New York, represented in Senate and Assem-bly, do enact as follows:
1 Section 1. Short title. This act shall be known and may be cited as
2 the "New York State Broadband Development Authority Act".
3 § 2. Declaration of policy. The legislature finds that certain areas
4 of this state are not being adequately served with broadband services
5 and that, for the benefit of the people of this state and the improve-
6 ment of their health, welfare, and living conditions, the improvement of
7 the economic and educational welfare of this state, and the improvement
8 of its public safety and security, it is essential that broadband
9 infrastructure be expanded to provide broadband services throughout this
10 state and that the private sector should be encouraged to invest in the
11 deployment of broadband services and networks and that financing by this
12 authority will encourage broadband investment. This act shall provide a
13 method to assure that economic, technological, and logistical integrated
14 broadband services are provided throughout this state on a nondiscrimi-
15 natory basis. The provision of affordable broadband services and
16 networks will assure the long-term growth of and the enhancement and
17 delivery of services by the educational, medical, commercial, and
18 governmental entities within this state, including, but not limited to,
19 municipalities and counties, public safety facilities, judicial and
20 criminal facilities, telemedical facilities, schools, colleges, univer-
EXPLANATION--Matter in italics (underscored) is new; matter in brackets
[] is old law to be omitted.
LBD04190-01-9
A. 1894 2
1 sities, hospitals, libraries, community centers, businesses, nonprofit
2 organizations, and residential properties. To increase the speed and
3 availability at which affordable broadband services become available in
4 this state, it is declared to be a valid public purpose to assist in the
5 financing and refinancing of the private and public sectors' development
6 of a statewide broadband infrastructure.
7 § 3. Definitions. 1. "Authority" means the New York state broadband
8 development authority.
9 2. "Capital reserve fund requirement" means the fund amount require-
10 ment that may be established in the resolution authorizing notes or
11 bonds for which a capital reserve fund has been established under
12 section 95-h of the state finance law. The required amount shall not
13 exceed the maximum amount of principal and interest maturing and becom-
14 ing due in a succeeding calendar year on the notes or bonds secured in
15 whole or in part by the fund.
16 3. "Broadband developer" means a person selected by the authority to
17 acquire, construct, develop, and create any part of the broadband
18 infrastructure.
19 4. "Broadband infrastructure" means all facilities, hardware, and
20 software and other intellectual property necessary to provide broadband
21 services in this state, including, but not limited to, voice, video, and
22 data.
23 5. "Broadband operator" means a person selected by the authority to
24 operate any part of the broadband infrastructure.
25 6. "Broadband services" means those services, including, but not
26 limited to, voice, video, and data, that provide capacity for trans-
27 mission in excess of 200 kilobits per second in at least one direction
28 regardless of the technology or medium used, including, but not limited
29 to, wireless, copper wire, fiber optic cable, or coaxial cable. If voice
30 transmission capacity is offered in conjunction with other services
31 utilizing transmission in excess of 200 kilobits per second, the voice
32 transmission capacity may be less than 200 kilobits per second.
33 7. "Development costs" means the costs associated with the broadband
34 infrastructure that have been approved by the authority and include, but
35 are not limited to, all of the following:
36 (a) the costs for planning, acquiring, leasing, constructing, main-
37 taining, and operating of the broadband infrastructure.
38 (b) payments for options to purchase, deposits on contracts of
39 purchase, and payments for the purchases of properties for the broadband
40 infrastructure.
41 (c) financing, refinancing, acquisition, demolition, construction,
42 rehabilitation, and site development of new and existing buildings.
43 (d) carrying charges during construction.
44 (e) purchases of hardware, software, facilities, or other expenses
45 related to the broadband infrastructure.
46 (f) legal, organizational, and marketing expenses, project manager and
47 clerical staff salaries, office rent, and other incidental expenses.
48 (g) payment of fees for preliminary feasibility studies and advances
49 for planning, engineering, and architectural work.
50 (h) any other costs and expenses necessary for the acquisition,
51 construction, maintenance, and operation of all or portions of the
52 broadband infrastructure.
53 8. "Person" means an individual, corporation, limited or general part-
54 nership, joint venture, or limited liability company or a governmental
55 entity, including state authorities, municipalities, counties, and town-
56 ships, police, fire and other public safety organizations, judicial
A. 1894 3
1 entities, medical entities, schools, colleges, universities, hospitals,
2 libraries, community centers, and local economic development entities.
3 Except to the extent that state authorities, police, fire and other
4 public safety organizations, judicial entities, medical entities,
5 schools, colleges, universities, hospitals, and libraries may constitute
6 state entities, person does not include this state.
7 § 4. New York state broadband development authority. 1. A board to be
8 known as the "New York state broadband development authority" is hereby
9 created. Such board shall be a body corporate and politic constituting
10 a public benefit corporation. The authority shall consist of 13 members
11 who shall be residents of New York state. The head or designee of the
12 state consumer protection board, the department of education, the
13 department of health, the department of labor, the department of public
14 service, the state emergency management office, and the office for tech-
15 nology shall serve as members. The remaining six members shall be
16 appointed in the following manner: two shall be appointed by the gover-
17 nor, two shall be appointed by the temporary president of the senate,
18 and two shall be appointed by the speaker of the assembly.
19 2. These members shall have experience in telecommunications and will
20 be subject to the limitations in the public officers law. The appointed
21 members shall serve for terms of four years each, provided that the
22 members first appointed shall serve until the thirty-first day of Decem-
23 ber of the third year following the year of their appointment. Vacan-
24 cies, occurring otherwise than by expiration of term of office, shall be
25 filled for the unexpired terms. The members of the authority shall
26 receive no compensation for their services but shall be reimbursed for
27 all their actual and necessary expenses incurred in connection with the
28 carrying out of the purposes of this act. The powers as set forth in
29 the by-laws of the board shall be established and vested in and be exer-
30 cised by the members of the authority at an initial meeting duly called
31 and held and eleven members shall constitute a quorum.
32 3. Notwithstanding any inconsistent provision of any general, special
33 or local law, ordinance, resolution or charter, no officer, member or
34 employee of the state or of any public authority shall forfeit his or
35 her office or employment by reason of his or her acceptance of appoint-
36 ment as a member, officer or employee of the authority, nor shall
37 service as such member, officer or employee be deemed incompatible or in
38 conflict with such office, membership or employment.
39 4. The authority and its corporate existence shall continue until
40 terminated by law, provided, however, that no such termination shall
41 take effect so long as the authority shall have bonds or other obli-
42 gations outstanding unless adequate provision has been made for the
43 payment thereof.
44 5. It is hereby determined and declared that the authority and the
45 carrying out of its powers and duties are in all respects for the bene-
46 fit of the people of the state of New York for the improvement of their
47 health, welfare and prosperity and that such purposes are public
48 purposes and that the authority is and will be performing an essential
49 governmental function in the exercise of the powers conferred upon it by
50 this act.
51 6. The board shall hold at least three regular meetings every year.
52 The chairperson, or in his or her absence the vice-chairperson, may call
53 a special meeting by notice in writing served personally upon the other
54 members of the board at least 48 hours prior to such meeting. All meet-
55 ings of the board shall be subject to article 7 of the public officers
56 law.
A. 1894 4
1 7. The purposes of the authority are to:
2 (a) assist through financing and refinancing the expansion of broad-
3 band infrastructure services to residential, commercial, public, and
4 nonprofit customers in this state.
5 (b) authorize the issuance of bonds and notes to finance or refinance
6 the private and public sectors' development of the broadband infrastruc-
7 ture.
8 (c) authorize the making of loans and joint venture and partnership
9 arrangements to broadband developers and broadband operators.
10 (d) authorize the imposition and collection of rents, charges, and
11 fees for the services furnished by the broadband infrastructure in
12 conjunction with financing entered into by the authority.
13 (e) enter into joint venture and partnership arrangements and partner-
14 ships to acquire, construct, maintain, and operate the broadband infras-
15 tructure.
16 (f) assist broadband developers and operators with all other matters
17 necessary for the acquisition, construction, maintenance, and operation
18 of the broadband infrastructure.
19 (g) continuously evaluate all types of technologies in order to
20 encourage the widest deployment of broadband services and broadband
21 infrastructure in this state.
22 (h) make broadband services to schools, libraries, and underserved
23 areas a priority under authority financing programs.
24 (i) insure that the financing and refinancing of the development of
25 broadband services under this act includes provisions that small busi-
26 nesses and that each region of this state have an equal opportunity to
27 receive financing and refinancing.
28 § 5. 1. The powers of the authority shall include all those necessary
29 to carry out and effectuate the purposes of this act, including, but not
30 limited to, all of the following:
31 (a) to borrow money and issue bonds and notes to fund operations of
32 the authority, to finance or refinance part or all of the development
33 costs of the broadband infrastructure, to refinance existing debt for
34 technology that constitutes a part of or is related to the broadband
35 infrastructure, and to secure bonds and notes by mortgage, assignment,
36 or pledge of any of its revenues and assets.
37 (b) to invest any money of the authority at the authority's
38 discretion, in any obligations determined proper by the authority, and
39 name and use depositories for its money.
40 (c) to enter into joint venture and partnership arrangements with
41 persons that will acquire, construct, develop, maintain, and operate all
42 or portions of the broadband infrastructure.
43 (d) to be designated the state program manager for federal telecommu-
44 nications assistance, to represent this state in negotiations with the
45 federal government regarding telecommunications assistance, and to
46 receive and distribute federal funding, including loans, grants, and
47 other forms of funding and assistance on this state's behalf.
48 (e) to receive and distribute state or local funding including grants,
49 loans, general appropriations, or an appropriation made for the purposes
50 of this act.
51 (f) to make loans and to enter into any joint venture and partnership
52 arrangements with broadband developers and broadband operators that will
53 acquire, construct, maintain, and operate all or portions of the broad-
54 band infrastructure.
55 (g) to provide operating assistance to make broadband services more
56 affordable to broadband developers, broadband operators, and broadband
A. 1894 5
1 customers, in conjunction with broadband infrastructure financed by the
2 authority.
3 (h) to impose and collect charges, fees, or rentals for the services
4 furnished by those portions of the broadband infrastructure financed by
5 the authority under this act.
6 (i) to set construction, operation, and financing standards for the
7 broadband infrastructure in connection with authority financing and to
8 provide for inspections to determine compliance with those standards.
9 (j) to acquire from any person interests in real or personal property
10 necessary for the operation of the authority.
11 (k) to procure insurance against any loss in connection with the
12 broadband infrastructure and any other property, assets, or activities
13 of the authority.
14 (l) to sue and be sued, to have a seal, and to make, execute, and
15 deliver contracts, conveyances, and other instruments necessary to the
16 exercise of the authority's powers.
17 (m) to enforce financial, operational, warranty, security, lease, and
18 guaranty terms and conditions established under financings by the
19 authority. The authority may acquire, construct, develop, lease, create,
20 and maintain all or portions of the broadband infrastructure and acquire
21 from any person interests in real and personal property.
22 (n) to make and amend bylaws.
23 (o) to indemnify and procure insurance indemnifying any members of the
24 board of the authority from personal liability by reason of their
25 service as a board member.
26 (p) to investigate, evaluate, and assess the current broadband infras-
27 tructure and the future broadband infrastructure needs of this state and
28 to encourage and participate in aggregation strategies for the broadband
29 services of all public entities and nonprofit corporations in this state
30 to maximize the interconnectivity and efficiencies of the broadband
31 infrastructure.
32 2. Notwithstanding any other provision of this act, the authority
33 shall not make loans to, or enter into any joint venture and partnership
34 arrangements or participation with, any governmental entity or nonprofit
35 organization except in connection with the financing or refinancing of
36 development costs for that allocable portion of the broadband infras-
37 tructure used or to be used exclusively by governmental entities or
38 nonprofit organizations, including, but not limited to, universities,
39 colleges, hospitals, school districts, public safety agencies, judicial
40 organizations, libraries, cities, townships, and counties. No allocable
41 portion of the broadband infrastructure financed by a loan to a govern-
42 mental entity or a nonprofit organization shall be used to serve resi-
43 dential, business, or other commercial customers.
44 3. Notwithstanding any other provision of this act, except in
45 connection with financing or refinancing under subdivision two of this
46 section or enforcement procedures authorized under paragraph (m) of
47 subdivision one of this section, the authority shall acquire real or
48 personal property constituting portions of the broadband infrastructure
49 only in connection with the participation of persons other than govern-
50 mental entities or nonprofit organizations through joint ventures and
51 partnership arrangements, or other co-ownership arrangements and only if
52 the participation is necessary to assure availability of financing or
53 refinancing derived from the issuance by the authority of bonds or
54 notes, the interest on which is exempt from taxation under the United
55 States internal revenue code, and the financing derived from the tax-ex-
56 empt bonds or notes is allocated only to those development costs relat-
A. 1894 6
1 ing to that portion of the broadband infrastructure that is to be used
2 by governmental bodies or nonprofit organizations.
3 4. The authority shall establish a seed capital loan program to make
4 capital loans to persons planning to apply to the authority for financ-
5 ing of broadband infrastructure. Priority for the seed capital loan
6 program shall be given for developments targeted to underserved areas.
7 During the initial 2 years of operations, the authority shall designate
8 a minimum of $500,000.00 to be targeted to rural underserved areas and a
9 minimum of $500,000.00 targeted to urban underserved areas. Community
10 economic development programs and small providers shall be given a pref-
11 erence to receive loans under this subdivision. The terms and conditions
12 for the seed capital loans shall be established by the authority. As
13 used in this act, "underserved areas" means geographical areas of this
14 state identified by the authority as having the greatest need for broad-
15 band development. In identifying underserved areas, the authority shall
16 consider the area's economic conditions, including, but not limited to,
17 family income, affordability of access, lack of options available, low
18 percentage of residents subscribing, and any other criteria considered
19 important by the authority in determining whether an area is under-
20 served.
21 5. As part of an application for financing under this act, the broad-
22 band developer and broadband operator shall file with the authority a
23 participation plan for small and minority owned businesses and a commu-
24 nitywide outreach plan to educate the public of the availability of
25 broadband services. The authority shall not approve an application
26 unless a plan is submitted under this subdivision.
27 6. The authority is authorized and directed:
28 (a) to study the desirability and means of attracting industry to the
29 state of New York.
30 (b) to periodically review the accessibility and rates to consumers
31 and businesses on the basis of accurate cost data obtained by such
32 accounting methods and systems as shall be approved by the members and
33 in furtherance of the authority's policy.
34 (c) to fund, through the use of bonds issued pursuant to section nine
35 of this act, research and development projects relating to broadband
36 that are sponsored by the state university of New York.
37 § 6. Code of ethics. The authority shall be deemed a state agency and
38 subject to section 74 of the public officers law.
39 § 7. Equal employment opportunity. The authority shall ensure that all
40 employees or applicants for employment are afforded equal employment
41 opportunity without discrimination.
42 § 8. 1. The authority may issue notes and bonds as provided under this
43 act to do all the following:
44 (a) pay the development costs associated with acquiring, leasing,
45 constructing, maintaining, and operating the broadband infrastructure.
46 (b) make loans to persons for development costs.
47 (c) make loans to persons to make purchases related to the broadband
48 infrastructure.
49 (d) make loans to persons to refinance existing debt of the authority
50 or other persons incurred in connection with the acquisition or develop-
51 ment of technology that constitutes a part of or is related to the
52 broadband infrastructure.
53 (e) pay the interest on bonds and notes of the authority.
54 (f) establish reserves to secure the bonds and notes of the authority.
A. 1894 7
1 (g) make other expenditures necessary to carry out the authority's
2 duties under this act, including the payment of the authority's operat-
3 ing expenses.
4 2. The authority may issue renewal notes, issue bonds to pay notes,
5 and refund bonds by the issuance of new bonds, whether or not the bonds
6 to be refunded have matured. The refunding bonds shall be sold and the
7 proceeds applied to the purchase, redemption, or payment of the bonds to
8 be refunded. The authority may issue instruments separate from the obli-
9 gations described in this section that establish a contractual right in
10 the holder of the instrument to require mandatory tender for purchase of
11 the obligations to which the instrument applies for a period of time and
12 subject to provisions as the authority may determine.
13 3. Except as otherwise provided by the authority or this act, every
14 note or bond issue of the authority shall be a general obligation of the
15 authority payable out of revenues or money of the authority, subject
16 only to agreements with the holders of particular notes or bonds pledg-
17 ing any particular receipts or revenues.
18 4. Whether or not the notes or bonds are of a form or character as to
19 be negotiable instruments, the notes or bonds are negotiable instruments
20 within the meaning of the uniform commercial code.
21 § 9. 1. The notes and bonds shall be authorized by resolution of the
22 authority and mature at the time provided in the resolution. The notes
23 and bonds shall be in a form, bear interest at a rate or rates, be in
24 the denominations, carry registration privileges, be payable, and be
25 subject to the terms of redemption as provided in the resolution.
26 2. The notes and bonds of the authority may be sold by the authority
27 at public or private sales at prices as the authority determines.
28 § 10. A resolution relating to authorizing notes or bonds may contain
29 any of the following provisions, which shall be a part of the contract
30 with the holder of the notes or bonds:
31 1. Pledging all or any part of the revenues of the authority, and all
32 or any part of the money received in payment of loans and interest on
33 loans, and other money received or to be received to secure the payment
34 of the notes or bonds.
35 2. Pledging all or any part of the assets of the authority, including
36 mortgages and obligations obtained by the authority in connection with
37 its programs, to secure the payment of the notes or bonds.
38 3. Pledging any loan, grant, or contribution from a government entity.
39 4. The use and disposition of the gross income from contracts and
40 leases of the authority.
41 5. The setting aside of reserves or sinking funds and the regulation
42 and disposition of reserved or sinking funds.
43 6. Limitations on the purpose to which the proceeds of sale of notes
44 or bonds may be applied and pledging proceeds to secure the payment of
45 the notes or bonds.
46 7. Limitations on the issuance of additional notes or bonds, the terms
47 upon which additional notes or bonds may be issued and secured, and the
48 refunding of outstanding or other notes or bonds.
49 8. The procedure, if any, by which the terms of any contract with
50 noteholders or bondholders may be amended or abrogated, the amount of
51 notes or bonds the holders of which shall consent to the amendment or
52 abrogation, and the manner in which the consent is to be given.
53 9. Vesting in a trustee or trustees property, rights, powers, and
54 duties in trust as the authority may determine, which may include any of
55 the rights, powers, and duties of the trustee appointed by the bondhold-
56 ers under this act and limiting or abrogating the rights of the bond-
A. 1894 8
1 holders to appoint a trustee under this section or limiting the rights,
2 powers, and duties of the trustee.
3 10. Establishing a contractual right to require mandatory tender for
4 purchase of the notes or bonds in an instrument separate from the notes
5 or bonds. The instrument may be issued or sold by the authority to
6 investors.
7 11. Except as otherwise prohibited by this act, any other provision
8 that may affect the security or protection of the notes or bonds.
9 12. Delegating to an officer or other employee of the authority, or an
10 agent designated by the authority, for a period of time as the authority
11 determines, the power to cause the issue, sale, and delivery of the
12 notes or bonds within limits on those notes or bonds established by the
13 authority as to any of the following:
14 (a) the form.
15 (b) the maximum interest rate or rates.
16 (c) the maturity date or dates.
17 (d) the purchase price.
18 (e) the denominations.
19 (f) the redemption premiums.
20 (g) the nature of the security.
21 (h) the selection of the applicable interest rate index.
22 (i) other terms and conditions with respect to issuance of the notes
23 or bonds as the authority shall prescribe.
24 § 11. 1. Any pledge made by the authority is valid and binding from
25 the date that the pledge is made.
26 2. The money or property pledged and received by the authority shall
27 immediately be subject to the lien of the pledge without any physical
28 delivery or further act and the lien of the pledge is valid and binding
29 against all parties having claims in tort, contract, or otherwise
30 against the authority, irrespective of whether the parties have notice
31 of the lien.
32 3. The resolution or any other instrument by which a pledge is created
33 need not be recorded.
34 § 12. The members of the board or any person executing the notes or
35 bonds under this act are not liable personally on the notes or bonds or
36 subject to any personal liability or accountability by reason of the
37 issuance of the notes or bonds.
38 § 13. 1. The authority may issue notes or bonds that are expressly
39 stated not to be general obligations of the authority but that consti-
40 tute limited obligations of the authority payable solely from and
41 secured solely by the revenues, money, and property as the authority may
42 specify.
43 2. The notes or bonds designated as limited obligations under this
44 section shall not be payable from or secured by the reserve capital
45 account, and any reserve fund established for the limited obligation
46 notes or bonds shall not constitute a capital reserve fund under this
47 act.
48 § 14. Monies of the authority. 1. All monies of the authority from
49 whatever source derived shall be paid to the state comptroller as agent
50 of the authority, who shall not commingle such monies with any other
51 monies. Such monies shall be deposited in a separate bank account or
52 accounts. The monies in such accounts shall be paid out on check of the
53 comptroller on requisition of the chairperson of the authority or of
54 such other person as the authority may authorize to make such requisi-
55 tion. All deposits of such monies shall be secured by obligations of the
56 United States or of the state of New York of a market value equal at all
A. 1894 9
1 times to the amount on deposit and all banks and trust companies are
2 authorized to give such security for such deposits. The comptroller and
3 his or her legally authorized representatives are hereby authorized and
4 empowered from time to time to examine the accounts and books of the
5 authority, including its receipts, disbursements, contracts, leases,
6 sinking funds, investments and any other matters relating to its finan-
7 cial standing.
8 2. Notwithstanding the provisions of this section, the authority shall
9 have power, subject to the approval of the comptroller, to contract with
10 the holders of any of its bonds as to the custody, collection, securing,
11 investment and payment of any monies of the authority, or any monies
12 held in trust or otherwise for the payment of bonds or in any way to
13 secure notes or bonds, and to carry out any such contract. Monies held
14 in trust or otherwise for the payment of bonds or in any way to secure
15 bonds and deposits of such monies may be secured in the same manner as
16 monies of the authority, and all banks and trust companies are author-
17 ized to give such security for such deposits.
18 3. Monies of the authority not required for immediate use may, in the
19 discretion of the authority, be invested by the comptroller in obli-
20 gations of the United States government or of the state of New York.
21 4. Subject to agreements with bondholders and the approval of the
22 comptroller, the authority shall prescribe a system of accounts.
23 § 15. Agreement of the state. The state of New York does hereby pledge
24 to and agree with the holders of any obligations issued under this act,
25 and with those parties who may enter into contracts with the authority,
26 that the state will not limit or alter the rights hereby vested in the
27 authority until such obligations together with the interest thereon are
28 fully met and discharged and/or such contracts are fully performed on
29 the part of the authority, provided that nothing contained in this act
30 shall preclude such limitation or alteration if and when adequate
31 provision shall be made by law for the protection of the holders of such
32 obligations of the authority or those entering into such contracts with
33 the authority. The authority as agent for the state is authorized to
34 include this pledge and undertaking for the state in such obligations or
35 contracts.
36 § 16. The state is not liable on notes or bonds of the authority and
37 the notes and bonds of the authority shall not constitute a debt of this
38 state. The bonds shall contain on their face a statement of the limita-
39 tion contained in this section.
40 § 17. Contracts negotiated by authority. 1. Contracts negotiated by
41 the authority shall be in conformity with the applicable provisions of
42 section 135 of the state finance law.
43 2. After preliminary agreement upon the terms of any such contracts
44 shall have been reached by the authority and its co-party or co-parties,
45 the authority shall promptly transmit a copy of such proposed contract
46 to the governor, the comptroller, the speaker of the assembly, the
47 minority leader of the assembly, the chairperson of the assembly ways
48 and means committee, the temporary president of the senate and the
49 minority leader of the senate and the chairperson of the senate finance
50 committee and shall hold a public hearing or hearings upon the terms
51 thereof. At least thirty days notice of such hearing shall be given by
52 publication once in each week during such period in each of six newspa-
53 pers within the state to be selected by the authority. Copies of
54 proposed contracts shall be available for public inspection during such
55 period of thirty days at the office or offices of the authority and at
56 such other places throughout the state as it may designate.
A. 1894 10
1 3. Following such public hearing, the authority shall reconsider the
2 terms of the proposed contract or contracts and shall negotiate such
3 changes and modifications in the contract or contracts as it deems
4 necessary or advisable.
5 4. When such contract or contracts are finally agreed upon in terms
6 satisfactory to the authority and its co-party or co-parties, and which
7 the authority believes to be in the public interest, the authority shall
8 thereupon report the proposed contract or contracts, together with its
9 recommendations and the record of the public hearings thereon, to the
10 comptroller, the speaker of the assembly, the chairperson of the assem-
11 bly ways and means committee, the temporary president of the senate, the
12 chairperson of the senate finance committee and the governor. The gover-
13 nor shall, within 60 days thereafter, indicate his or her approval or
14 disapproval thereof and give his or her reasons therefor.
15 5. If the governor and comptroller shall approve such contract, then
16 the same shall be executed by the chairperson and secretary of the
17 authority and it shall thereupon come into full force and effect and be
18 binding upon the authority and all other parties thereto in accordance
19 with its terms.
20 § 18. The notes and bonds of the authority are securities in which
21 public officers and bodies of this state and municipalities and munici-
22 pal subdivisions, insurance companies and associations and other persons
23 carrying on an insurance business, banks, trust companies, savings banks
24 and savings associations, savings and loan associations, investment
25 companies, administrators, guardians, executors, trustees and other
26 fiduciaries, and any other person who is now or may be authorized to
27 invest in bonds or other obligations of this state, may properly and
28 legally invest funds, including capital, in their control or belonging
29 to them.
30 § 19. Exemption from taxation. It is hereby found and declared that
31 the projects authorized by this act are for the aid and improvement of
32 commerce and that such aid and improvement of commerce and the develop-
33 ment of equal access to bandwidth is primarily for the benefit of the
34 people of the state of New York, for the improvement of their health and
35 welfare and material prosperity, and is a public purpose, and the
36 authority shall be regarded as performing a governmental function in
37 undertaking such projects and in carrying out the provisions of this
38 act, and shall be required to pay no taxes or assessments upon its
39 activities in the operations and maintenance thereof, provided that
40 nothing herein shall prevent the authority from entering into agreements
41 to make payments in lieu of taxes with respect to property acquired for
42 any project where such payments are based solely on the value of real
43 property without regard to any improvement thereof by the authority.
44 § 20. Actions against authority. If any action founded upon a tort, a
45 notice of claim shall be required as a condition precedent to the
46 commencement of an action or special proceeding against the authority or
47 any officer, appointee, agent or employee thereof, and the provisions of
48 section 50-e of the general municipal law shall govern the giving of
49 such notice. An action against the authority for wrongful death shall be
50 commenced in accordance with the notice of claim and time limitation
51 provisions provided by law.
52 § 21. Public service law not applicable to authority. The authority
53 shall not be subject to the provisions of the public service law or to
54 regulation by or the jurisdiction of the department of public service or
55 the public service commission by reason of any contract, agreement or
A. 1894 11
1 arrangement entered into by the authority with any private telecommuni-
2 cations company.
3 § 22. Annual reports. The authority shall report annually to the
4 governor, the comptroller, and the legislature upon its operations and
5 transactions. Such annual report shall include but not be limited to:
6 1. An assessment of current availability and reliability of bandwidth
7 to all businesses and residents of New York;
8 2. The costs associated with acquiring and using lowband, broadband,
9 and wireless bandwidth;
10 3. Progress on service to previously defined underserved areas;
11 4. A schedule of its bonds and notes outstanding at the end of the
12 fiscal year and a statement of the amounts redeemed and incurred in that
13 fiscal year; and
14 5. Basic financial and operating information specifically detailed for
15 the reporting year and including but not limited to income and expense
16 statements, balance sheets, and changes in financial position, all in
17 accordance with generally accepted accounting principles, debt structure
18 and a summary of funds on a cash basis.
19 § 23. Separability. If any clause, sentence, paragraph, section, or
20 part of this act shall be adjudged by any court of competent jurisdic-
21 tion to be invalid, such judgment shall not affect, impair or invalidate
22 the remainder thereof, but shall be confined in its operation to the
23 clause, sentence, paragraph, section, or part thereof involved in the
24 controversy in which such judgment shall have been rendered.
25 § 24. The state finance law is amended by adding two new sections 95-h
26 and 95-i to read as follows:
27 § 95-h. Broadband development authority capital reserve fund. 1.
28 There is hereby established in the joint custody of the comptroller and
29 the chairperson of the New York state broadband development authority a
30 revenue fund known as the "broadband development authority capital
31 reserve fund".
32 2. The fund shall consist of that amount of money necessary to fulfill
33 the capital reserve fund requirement established by the New York state
34 broadband authority act.
35 3. The moneys of the fund shall be used for the payment of principal
36 and interest of notes or bonds, for the purchase or redemption of the
37 notes or bonds, or for the payment of a redemption of a premium required
38 to be paid when the notes or bonds are redeemed before maturity. The
39 moneys of the fund shall not be used for an optional purchase or
40 optional redemption of notes or bonds if the use would reduce the total
41 of the money in the capital reserve fund to less than the capital
42 reserve fund requirement established for the fund.
43 4. Income earned by the fund may be transferred to the broadband
44 development authority reserve capital account established in section
45 ninety-five-i of this article.
46 5. If, at any time, the amount of the capital reserve fund falls below
47 the capital reserve fund requirement, the chairperson of the New York
48 state broadband development authority shall transfer money from the
49 broadband development authority reserve capital account the amount
50 necessary to meet the capital reserve fund requirement. If, at any time,
51 the broadband development authority reserve capital account has been
52 exhausted and the broadband development authority capital reserve fund
53 falls below the capital reserve fund requirement, then the chairperson
54 of the broadband development authority shall, by the next December
55 first, certify to the governor the amount necessary to restore the fund
56 to its required amount.
A. 1894 12
1 § 95-i. Broadband development authority reserve capital account. 1.
2 There is hereby established in the joint custody of the comptroller and
3 the chairperson of the New York state broadband development authority a
4 miscellaneous revenue fund known as the "broadband development authority
5 reserve capital account".
6 2. The broadband development authority reserve capital account shall
7 consist of all moneys received by or on behalf of the New York state
8 broadband development authority that are not otherwise needed for the
9 broadband development capital reserve fund established in section nine-
10 ty-five-h of this article. Such moneys shall include, but not be limited
11 to, any proceeds received as a result of the sale of notes or bonds, any
12 gifts or donations made to the authority, surety bonds, interest from
13 the broadband development capital reserve fund, or any other moneys
14 received by the authority.
15 3. The moneys of this account shall be used to further the purposes of
16 the New York state broadband development authority as described in the
17 New York state broadband development authority act.
18 § 25. This act shall take effect January 1, 2010 and shall be deemed
19 repealed 10 years after such effective date.
