Establishes the Downstate New York Power Authority to purchase or condemn properties of the Consolidated Edison Company to own and operate electric and gas utility service for the benefit of the people and businesses of New York city and Westchester, Rockland and Orange counties; provides for a 11 member board of directors; provides for procedures, powers, budget meetings, subsidiary corporations, service, financing and disposition of income.
STATE OF NEW YORK
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5413
2009-2010 Regular Sessions
IN ASSEMBLY
February 13, 2009
___________
Introduced by M. of A. BRENNAN, ORTIZ, CLARK, GREENE, CASTRO -- Multi-
Sponsored by -- M. of A. AUBRY, BRADLEY, COLTON, COOK, DINOWITZ, GOTT-
FRIED, HEASTIE, JACOBS, MARKEY, NOLAN, PHEFFER -- read once and
referred to the Committee on Corporations, Authorities and Commissions
AN ACT to amend the public authorities law, in relation to the creation
of the downstate New York power authority
The People of the State of New York, represented in Senate and Assem-bly, do enact as follows:
1 Section 1. Article 5 of the public authorities law is amended by
2 adding a new title 6-E to read as follows:
3 TITLE 6-E
4 DOWNSTATE NEW YORK POWER AUTHORITY
5 Section 1148. Short title.
6 1148-a. Establishment of authority.
7 1148-b. Establishment of downstate New York power
8 authority.
9 1148-c. Members of the authority.
10 1148-d. Powers and duties of the authority.
11 1148-e. Deposit for temporary possession of property.
12 1148-f. Application of public service law.
13 1148-g. Furnishing service within the authority.
14 1148-h. Liabilities for bonds.
15 1148-i. Bonds and notes of the authority.
16 1148-j. Rights of redemption.
17 1148-k. Bonds and obligations legal investments of fiduciaries.
18 1148-l. Exemption from taxation; payments in lieu of taxes.
19 1148-m. The city of New York and counties of Westchester,
20 Rockland and Orange may levy taxes within the authority.
21 1148-n. Examination by comptroller.
22 1148-o. Reports of the authority.
EXPLANATION--Matter in italics (underscored) is new; matter in brackets
[] is old law to be omitted.
LBD07136-01-9
A. 5413 2
1 § 1148. Short title. This title may be cited as the "downstate New
2 York power authority act".
3 § 1148-a. Establishment of authority. There is hereby established and
4 defined a public authority to be known as the "downstate New York power
5 authority", which shall embrace the service territory of the Consol-
6 idated Edison Company, including that portion of Westchester, Rockland
7 and Orange counties served by the aforesaid company.
8 § 1148-b. Establishment of downstate New York power authority. There
9 is hereby created a public utility district corporation, to be known as
10 the "downstate New York power authority", hereinafter referred to as the
11 authority. The authority shall be a body corporate and politic consti-
12 tuting a public benefit corporation, the objects of which, in the judg-
13 ment of the legislature, cannot be obtained under general laws. The
14 corporation shall have the power to sue and be sued, and to adopt a
15 seal. It shall have the power to acquire real and other forms of proper-
16 ty by purchase, eminent domain or otherwise, to incur debts, liabilities
17 and obligations, to issue bonds and notes and to exercise all powers
18 authorized by this title and reasonably necessary for accomplishing its
19 purposes, or properly incidental thereto, subject to the constitution
20 and laws of the United States and the state of New York. Such powers
21 shall be exercised in the name of the authority.
22 § 1148-c. Members of the authority. The members, constituting the
23 board of directors of the authority, shall consist of eleven persons,
24 seven of whom shall reside within the city of New York and shall be
25 appointed by the mayor of the city of New York and confirmed by the city
26 council. Two persons shall reside in Westchester county and shall be
27 appointed by the county executive of Westchester county and confirmed by
28 the county legislature. One person shall reside in Rockland county and
29 shall be appointed by the county executive of Rockland county and
30 confirmed by the county legislature. One person shall reside in Orange
31 county and shall be appointed by the county executive of Orange county
32 and confirmed by the county legislature.
33 The term of office of each member shall be four years, but in the
34 first instance the mayor shall appoint two members each for terms of
35 one, two and three years, respectively, and one member for a four-year
36 term. The Westchester county executive shall, in the first instance,
37 appoint members for one and two years, respectively.
38 Upon resignation of a member, or a vacancy occurring in any other
39 manner, it shall be filled by the officer previously appointing the
40 member to that office to fill the remainder of the term. Each member
41 before entering upon the duties of his office shall take the constitu-
42 tional oath of office, which shall be filed in the office of the secre-
43 tary of state. Seven directors shall constitute a quorum for the trans-
44 action of business, provided, however, that at least one member shall be
45 from Westchester, and, notwithstanding any other provision of law, the
46 concurrence of a majority of those present at a meeting shall be neces-
47 sary for the passage of any resolution, order or determination. Any
48 member may be removed by the attorney general for inefficiency, neglect
49 of duty or misconduct in office after a hearing upon charges and an
50 opportunity to be heard in person or by counsel upon not less than ten
51 days notice. No director shall receive a salary, but each shall be enti-
52 tled to reimbursement for any ordinary and necessary actual expenses
53 related directly to the business of the authority. They may elect one
54 of the members as president and may elect or appoint other officers and
55 determine their powers.
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1 § 1148-d. Powers and duties of the authority. The powers and duties
2 conferred by this title shall be exercised by the board of directors of
3 the authority, subject to the terms of this title. In the exercise of
4 such powers and duties the board shall have the following powers,
5 together with such other powers as may be reasonably necessary for
6 accomplishing the purposes and duties declared and set forth in this
7 title:
8 1. To own and operate electric generating facilities in the New York
9 City and Westchester, Rockland and Orange county areas for the benefit
10 of the people and businesses of the city of New York and the counties of
11 Westchester, Rockland and Orange;
12 2. To acquire, by purchase, condemnation or otherwise, the facilities
13 formerly owned by the Consolidated Edison Company for the production of
14 electricity;
15 3. To determine upon the location, type, size, construction, lease,
16 purchase, ownership, acquisition, use and operation of any plant or
17 plants or other structure or property, within or without the territorial
18 limits of the authority;
19 4. To appoint and at pleasure discharge a secretary or treasurer and
20 such clerical, engineering, legal and other professional assistance as
21 it may deem necessary for the purposes of this title and fix their
22 compensation;
23 5. To appoint and at pleasure remove all employees, to transfer
24 employees from their positions to other positions and to consolidate or
25 abolish such positions, except that any collective bargaining agreements
26 in force between the Consolidated Edison Company or any other company
27 and any certified collective bargaining representative for any employees
28 shall remain in full force and effect, and such employees shall be
29 exempt from the provisions of the public employees fair employment act
30 as set forth in article fourteen of the civil service law;
31 6. To enter upon any lands and within any building whenever in its
32 judgment it may be necessary for the purpose of making surveys and exam-
33 inations to accomplish any purposes set forth in this title;
34 7. By the whole, or by any three or more, of the members of the
35 authority, to make any investigation which it may deem necessary to
36 enable it effectively to carry out the provisions of this title and, for
37 that purpose, to take and hear proofs and testimony and to compel by
38 subpoena the attendance of witnesses and the production of records,
39 books, papers, accounts and other documents including public records;
40 8. To execute contracts, borrow money, issue bonds and other certif-
41 icates of indebtedness and sell or dispose of same in such amounts and
42 at such rates of interest as may be advisable. This shall include the
43 power to borrow money from any state or federal agency, including the
44 power authority of the state of New York, and to contract with the power
45 authority of the state of New York for any administrative, legal, engi-
46 neering or other services as may be necessary to effectuate the orderly
47 transition of operations from the previous owners to the authority;
48 9. (a) To hold public hearings, on the initiative of any three members
49 of the board or on the request of any person or persons, upon any matter
50 the board deems in the public interest;
51 (b) Further, to develop and adopt by October thirtieth of each calen-
52 dar year a capital budget plan for the following calendar year and to
53 hold at least two public hearings on said budget in each county in the
54 city of New York and in the counties of Westchester, Rockland and Orange
55 with both a day and an evening session, beginning at least forty-five
56 days prior to the adoption of said capital budget;
A. 5413 4
1 (c) To make such proposed capital budget available for public
2 inspection at all offices of the authority, in the main libraries of
3 both said counties and in such other places as the public service
4 commission may require so that the same may be available for public
5 inspection; the public shall be notified of said hearings in bills
6 rendered for service at least thirty days prior to the first such hear-
7 ing;
8 § 1148-e. Deposit for temporary possession of property. Whenever the
9 authority, in any proceedings instigated by it for the acquisition of
10 any existing plant or plants by condemnation, shall make application for
11 temporary possession pursuant to the provisions of the eminent domain
12 procedure law, the sum to be fixed by the court for deposit as a condi-
13 tion for granting such application need not exceed twenty per centum of
14 the assessed valuation of the real property sought to be acquired in
15 such proceeding as such assessed valuation appeared upon the last
16 assessment rolls for state and city taxes prior to the commencement of
17 such proceeding.
18 § 1148-f. Application of public service law. The rates, charges,
19 services, practices and finances of the authority shall remain subject
20 to the jurisdiction of the public service commission and the provisions
21 of the public service law, including the provisions of the home energy
22 fair practices act, the home insulation and energy conservation act and
23 the provisions related to the siting and certification of major generat-
24 ing plants and transmission lines. Notwithstanding the aforesaid appli-
25 cation of the provisions of the public service law, the following
26 provisions shall govern with respect to the rates, charges, services,
27 practices and finances of the authority and, where such provisions are
28 inconsistent with the public service law, shall be deemed to supersede
29 it:
30 1. The amount of consideration paid and the issuance of securities by
31 the authority for the acquisition of the aforesaid facilities shall not
32 require the approval of the public service commission.
33 2. The cost of acquisition of said facilities, including the costs of
34 the issuance of bonds and notes related to such acquisition such as
35 legal and engineering fees, underwriters' discount and other reasonable
36 and necessary fees related to such issuance, shall be deemed by the
37 public service commission to be the original cost of said facilities
38 upon which the rate base shall be determined. Any contingency funds and
39 any debt service reserve funds raised as a result of the issuance of
40 bonds and notes shall be deemed cash assets and capital surplus liabil-
41 ities, respectively, and any income from such cash assets shall be
42 determined to be other than operating income for the authority.
43 3. Any rate increases or decreases resulting from the creation of the
44 authority shall be uniform among all classes of customers. In addition,
45 the authority shall not seek any changes, other than the uniform changes
46 for all classes of customers, in any tariff, rate or schedule for at
47 least two years after the acquisition of the aforementioned generating
48 facilities. After such period, all changes among rates, tariffs and
49 schedules among classes of customers shall be subject to the approval of
50 the public service commission.
51 4. The board of directors shall annually make the report required by
52 subdivision seven of section sixty-six of the public service law to the
53 public service commission, which report shall be verified by the oath of
54 the president of the authority.
55 § 1148-g. Furnishing service within the authority. It shall be the
56 obligation of the authority to furnish safe and reliable electric gener-
A. 5413 5
1 ation service to the persons and businesses in the authority at just and
2 reasonable rates. The authority shall have the power to construct or
3 acquire, within or without the territorial limits of the authority, such
4 additional facilities beyond the former facilities of the Consolidated
5 Edison Company as shall reasonably be necessary to meet such obli-
6 gations. The authority may purchase power and energy from any persons,
7 and sell power and energy to any person, within or without the territo-
8 rial limits of the authority, where the board of directors deems such
9 sales or purchases to be in the best interest of the people and busi-
10 nesses of the authority.
11 § 1148-h. Liabilities for bonds. The bonds or other obligations of the
12 authority shall not be debts of the state of New York, the city of New
13 York or the county of Westchester, and the board of directors shall have
14 no power to make them payable except out of revenues of the authority.
15 § 1148-i. Bonds and notes of the authority. 1. The authority shall
16 have the power, and is hereby authorized, from time to time to issue its
17 negotiable bonds or notes, in conformity with the applicable provisions
18 of the local finance law, for the purpose of financing the acquisition
19 of the former electric generating facilities of the Consolidated Edison
20 Company and for the financing of any further projects authorized by this
21 title, including the acquisition of any real or personal property deemed
22 necessary by the authority.
23 2. In anticipation of the sale of such bonds the authority may issue
24 negotiable bond anticipation notes in conformity with the applicable
25 provisions of the local finance law and may renew the same from time to
26 time but the maximum maturity of any such note, including renewals ther-
27 eof, shall not exceed five years from the date of issue of such original
28 notes. Such notes shall be paid from any moneys of the authority avail-
29 able therefor and not otherwise pledged or from the proceeds of sale of
30 the bonds of the authority in anticipation of which they were issued.
31 Such notes shall not be issued in any amount in excess of the amount of
32 bonds which the authority is authorized to issue less the amount of any
33 bonds or other notes theretofore issued and outstanding. The notes shall
34 be issued in the same manner as the bonds. Such notes and the resolution
35 authorizing the same may contain any provisions, conditions or limita-
36 tions which a bond resolution of the authority may contain.
37 3. The authority shall have power from time to time, whenever it deems
38 refunding expedient, to refund any bonds by the issuance of new bonds,
39 whether the bonds to be refunded have or have not matured, and may issue
40 bonds and notes partly to refund bonds and notes then outstanding and
41 partly for any other purpose authorized by this title. Refunding bonds
42 and notes may be exchanged for the bonds and notes to be refunded, with
43 such cash adjustments as may be agreed, or may be sold with the proceeds
44 applied to the purchase or payment of the bonds and notes to be
45 refunded.
46 4. The bonds and notes may be issued payable in annual installments or
47 as term bonds of the authority or the authority may, in its discretion,
48 issue bonds and notes of both types. Such bonds and notes shall be
49 authorized by resolution of the board of directors and shall bear such
50 date or dates, mature at such time or times not exceeding fifty years
51 from their respective dates, bear interest at such rate or rates payable
52 annually or semi-annually, be in such denominations, be in registered
53 form only, be executed in such manner, be payable in lawful money of the
54 United States of America at such place or places and be subject to such
55 terms of redemption as such resolution or resolutions may provide. In
56 the event that term bonds are issued, the resolution authorizing same
A. 5413 6
1 may make such provisions for the establishment and management of
2 adequate sinking funds for the payment thereof as the authority may deem
3 necessary. The bonds or notes shall be sold at public sale and may be
4 sold for such price or prices as the authority shall determine.
5 Announcements of such public sale may appear in any bills rendered for
6 service by the authority. The resolution or resolutions authorizing any
7 such obligations may contain provisions, which shall be part of the
8 contract with the holders thereof, which provisions may:
9 (a) pledge the revenues of the authority to secure the payment of such
10 bonds and agree to maintain schedules of rates, tariffs and charges
11 adequate to pay the interest and principal of such obligations;
12 (b) give to the holders of such bonds and other obligations, or their
13 authorized representatives, a lien upon such revenues and maintain such
14 accounts as may be required by such holders, subject to agreement by the
15 public service commission and the state comptroller;
16 (c) require such revenues to be set aside for sinking funds and
17 reserve funds, safeguarding the deposit, use and investment thereof;
18 (d) limit or restrict the power of the authority under this title,
19 insofar as the same may be deemed advisable, to secure the payment of
20 such bonds and notes, including the authority to issue additional obli-
21 gations or the disposition of the proceeds of revenues of the authority;
22 (e) authorize the appointment of a trustee or receiver as provided,
23 limit the rights of the bondholders to enforce their bonds or notes by
24 independent action and, in the event of a receivership, require the
25 return of all properties to the authority when the bonds or notes are
26 paid or redeemed and all costs paid;
27 (f) contain any other provisions reasonably necessary or deemed advis-
28 able to secure and provide for the payment of said bonds and obligations
29 and the rights and remedies of the holders thereof;
30 (g) provide that the authority, the state of New York, the counties of
31 Westchester, Rockland and Orange and the city of New York may purchase,
32 pledge, cancel, hold or redeem such bonds and notes;
33 (h) provide for the amendment of any such resolution in any respect
34 and the amount of bonds or obligations the holders of which, after
35 published or written notice, must consent or object thereto in order
36 that such amendment may or may not become effective.
37 § 1148-j. Rights of redemption. The authority, the state of New York,
38 the city of New York, and the counties of Westchester, Rockland and
39 Orange shall have the right to redeem the bonds and obligations of the
40 authority, may acquire such bonds and notes and may cancel, hold, sell
41 or otherwise dispose of such bonds and obligations.
42 § 1148-k. Bonds and obligations legal investments of fiduciaries. On
43 or before January first of each year, commencing with January first, two
44 thousand ten, the comptroller of the state of New York shall file with
45 the public service commission his certificate stating the average annual
46 revenues of the authority, or of the properties acquired or to be
47 acquired by the authority, for the then preceding five years, as the
48 case may be, and the maximum amount required in any future year to meet
49 the interest and maturing principal of the outstanding obligations of
50 the authority. If in his opinion the obligations of the authority are on
51 the facts so determined and in his judgment sufficiently secured so as
52 to constitute a suitable investment for the public funds of the state,
53 he shall so certify, but such certification may later be withdrawn. So
54 long as such certification remains in effect, the comptroller and all
55 other public officers and bodies of the state, all municipalities and
56 other political subdivisions, all insurance companies and associations,
A. 5413 7
1 all savings banks and savings institutions, including savings and loan
2 officers, associations, administrators, guardians, executors and trus-
3 tees, and all other fiduciaries in the state may properly and legally
4 invest funds in their control in such obligations.
5 § 1148-l. Exemption from taxation; payments in lieu of taxes. The
6 real and personal property of the authority and all of its activities
7 and operations shall be exempt from taxation provided, however, that the
8 authority shall pay to all units of state and local government amounts
9 in lieu of taxes equal to the taxes paid or owing by the previous owner
10 in the fiscal year immediately prior to the acquisition of the facili-
11 ties of said previous owner by the authority. In addition the board may
12 agree to increase payments in lieu of taxes to the city of New York and
13 the counties of Westchester, Rockland and Orange.
14 § 1148-m. The city of New York and counties of Westchester, Rockland
15 and Orange may levy taxes within the authority. 1. The city of New York
16 and the county of Westchester may, at any time, levy a special tax
17 assessment upon the real property in such city or county, respectively,
18 benefited by the authority to defray all or any portion of the payment
19 of interest and principal of bonds or other obligations of the authori-
20 ty, to provide sinking funds, guaranty funds or other funds for each
21 payment or to provide for the redemption of such obligations. Such
22 assessment or assessments shall be levied in conformance with the appli-
23 cable provisions of the United States Internal Revenue Code and any
24 regulations or rulings issued thereunder in order that real property
25 owners in such city and county be enabled to deduct such assessments
26 from federal income taxes.
27 2. Such city and counties shall establish a system of accounts, with
28 the approval of the state comptroller and the public service commission,
29 for the transfer of the proceeds of such levies to the authority and for
30 such reductions in the rates and charges for electric service in the
31 amounts transferred as shall be required of the authority, except that
32 amounts transferred for the maintenance of sinking funds, guaranty funds
33 or funds other than for the payment of interest or principal maturing
34 within one year shall not presently reduce rates for electric service.
35 § 1148-n. Examination by comptroller. The state comptroller and his
36 legally authorized representatives are hereby authorized and empowered
37 from time to time, and in addition to the public service commission, to
38 examine the accounts and books of the authority, including its receipts,
39 disbursements, contracts, leases, sinking funds, investments and any
40 other matters relating to its financial standing.
41 § 1148-o. Reports of the authority. The authority shall annually
42 report to the governor, the legislature, the city of New York, the coun-
43 ty of Westchester, the public service commission and the comptroller
44 upon its activities and operations.
45 § 2. This act shall take effect immediately.
