Relates to the general debt service fund of the city of New York; relates to a statutory lien, pledge and agreement in connection with such fund; requires the city of New York to maintain a debt service fund for the purposes of paying the debt service due or becoming due in the then current fiscal year; provides that all amounts retained in the funds be used solely to pay the debt service of the city and that such funds be pledged to the holders of the notes and bonds.
STATE OF NEW YORK
________________________________________________________________________
5199
2013-2014 Regular Sessions
IN SENATE
May 14, 2013
___________
Introduced by Sen. FELDER -- read twice and ordered printed, and when
printed to be committed to the Committee on Local Government
AN ACT to amend the local finance law, in relation to the general debt
service fund of the city of New York and a statutory lien and pledge
and agreement in connection therewith
The People of the State of New York, represented in Senate and Assem-bly, do enact as follows:
1 Section 1. Findings. The legislature has previously found and declared
2 that a state of financial emergency exists within the city of New York.
3 The legislature further finds and declares that the assurance of timely
4 payment of monthly debt service by the city is and will continue to be a
5 matter of overriding state concern, and that it is appropriate and
6 desirable for the legislature to implement and reinforce the provisions
7 of sections two, ten and twelve of article eight of the state constitu-
8 tion to strengthen such assurance and to control the exercise of the
9 political and governmental powers of the city by granting a statutory
10 lien on a portion of the real estate tax payments in the city.
11 § 2. Section 85.00 of the local finance law, as amended by chapter 777
12 of the laws of 1978, is amended to read as follows:
13 § 85.00 Limitation of provisions; emergency period. No provisions of
14 this title, other than [section] sections 85.80 and 85.85, shall be
15 applicable to the city of New York. The provisions of this title shall
16 be applicable (a) only to a municipality, other than the city of New
17 York, with respect to which the legislature has declared that a state of
18 financial emergency exists, and (b) only during such emergency period as
19 may be specified by the legislature for any municipality, other than the
20 city of New York[,]; provided, however, that the provisions of section
21 85.80 of this title shall apply to any municipality, including the city
22 of New York, at any time, and the provisions of section 85.85 shall
23 apply only to the city of New York. As used in this title, the term
24 "emergency financial control board" shall mean any such board estab-
EXPLANATION--Matter in italics (underscored) is new; matter in brackets
[] is old law to be omitted.
LBD10680-01-3
S. 5199 2
1 lished by state law for the municipality, and the term "covered organ-
2 ization" shall mean any such organization as defined in the act declar-
3 ing that a state of financial emergency exists for such municipality.
4 Nothing contained in this title shall be construed to limit or stay any
5 emergency financial control board from doing any act or commencing or
6 continuing any action or special proceeding against or involving the
7 municipality or any covered organization.
8 § 3. The local finance law is amended by adding a new section 85.85 to
9 read as follows:
10 § 85.85 General debt service fund; pledge and agreement of the state.
11 a. As used in this section, the following words and terms shall have the
12 following meanings unless the context shall indicate another or differ-
13 ent meaning or intent.
14 1. "Comptroller" means the comptroller of the state of New York.
15 2. "City" means the city of New York.
16 3. "Fiscal quarter" means the three-month period beginning July first,
17 October first, January first, or April first.
18 4. "Monthly debt service" means, as of any date of computation, the
19 amount of monies equal to the aggregate of (i) all interest payable
20 during the month for which the computation is made on bonds and notes of
21 the city, plus (ii) the amount of principal (including payments into
22 sinking funds) maturing or otherwise coming due during such month on all
23 bonds of the city (excluding principal payments made from sinking funds
24 required by the terms of certain city bonds), plus (iii) the amount of
25 principal to be paid on notes of the city during such month from sources
26 other than the proceeds of bonds or renewal notes (exclusive of revenue
27 anticipation notes and tax anticipation notes or renewals thereof issued
28 less than two years prior to the date of computation).
29 5. "Fund" means the general debt service fund established pursuant to
30 paragraph b of this section.
31 6. "TAN debt service account" means the tax anticipation note debt
32 service account established within the fund pursuant to paragraph b of
33 this section.
34 7. "RAN debt service account" means the revenue anticipation note debt
35 service account established within the fund pursuant to paragraph b of
36 this section.
37 8. "Available tax levy" with respect to an issue of tax anticipation
38 notes means at any date of computation the total amount of city real
39 estate taxes or assessments projected to be received in cash on or
40 before the fifth day preceding the maturity date of such tax antic-
41 ipation note issue, less amounts required during the period between the
42 date of computation and the fifth day preceding such maturity date to be
43 paid into the fund or otherwise required to pay interest payable on
44 other outstanding city bonds and notes, principal (including payments
45 into sinking funds) coming due on outstanding city bonds and principal
46 to be paid from sources other than the proceeds of bonds or renewal
47 notes on other outstanding city notes (exclusive of revenue anticipation
48 notes or renewals thereof issued less than two years prior to the date
49 of computation) but not including payments from sinking funds required
50 by the terms of certain city bonds. For the purposes of this subdivi-
51 sion, such amounts required shall not include principal of or interest
52 on any notes of the city held by the municipal assistance corporation
53 for the city of New York to the extent that such corporation has
54 evidenced its intention not to present such notes for payment of princi-
55 pal or interest during the fiscal year in which the computation is made,
56 provided that such notes were held by such corporation on June thirti-
S. 5199 3
1 eth, nineteen hundred seventy-eight or were issued in exchange for or in
2 refunding or renewal of notes held by such corporation on such date.
3 b. The city shall maintain a general debt service fund for the purpose
4 of paying debt service due or becoming due in the then current fiscal
5 year and in subsequent fiscal years. All monies in the fund shall be
6 held by the comptroller, who shall administer and maintain the fund in
7 accordance with the provisions of this section.
8 1. All payments of or on account of real estate taxes or assessments,
9 other than the proceeds of tax anticipation notes, shall be immediately
10 upon receipt deposited in such fund. The comptroller shall retain,
11 disburse and apply monies in the fund during each month as follows:
12 (a) During the first month of each fiscal quarter, there shall be
13 retained in the fund all real estate tax payments deposited in the fund
14 until there shall have been retained from monies so deposited during
15 such month an amount equal to the total monthly debt service, computed
16 as of the date of any disbursement of money from the fund, for the
17 second and third months of such fiscal quarter; provided that such
18 amount shall be reduced by any amount already on deposit in the fund
19 which may be used to pay the monthly debt service for such months.
20 (b) During the second and third months of each fiscal quarter, there
21 shall be retained in the fund all real estate tax payments deposited in
22 the fund until there shall have been retained from monies so deposited
23 during such month an amount equal to the total monthly debt service,
24 computed as of the date of any disbursement of monies from the fund, for
25 the first month of the next succeeding fiscal quarter; provided that
26 such amount shall be reduced by any amount already on deposit in the
27 fund which may be used to pay the monthly debt service for such month.
28 (c) During any month of a fiscal quarter, after the retentions
29 required by subparagraphs (a) and (b) of this subdivision have been made
30 for such month, the comptroller shall deposit any remaining balance of
31 real estate taxes received during such month, first into the TAN debt
32 service account to the extent required under subdivision four of this
33 paragraph, and second into the general fund of the city or otherwise in
34 accordance with law.
35 (d) The city may at any time pay into the fund any monies required by
36 law to be used to pay monthly debt service and any other monies avail-
37 able for such purpose.
38 2. The payment of monthly debt service shall be made, first, from
39 amounts retained in the fund. Amounts retained in the fund (exclusive of
40 the TAN debt service account and the RAN debt service account) shall be
41 used only to pay monthly debt service of the city and, pending this use,
42 shall be pledged to and held in trust for (and a lien thereon, and on
43 the right to receive the real estate tax payments as long as bonds or
44 notes are outstanding, is hereby granted in favor of) the holders of the
45 bonds and notes of the city. Notwithstanding the uniform commercial code
46 or any other law to the contrary, the pledge, trust and lien created by
47 this subdivision shall be valid, binding, perfected and enforceable
48 without any security agreement, nor any physical delivery of the collat-
49 eral or further act, and the lien shall be valid, binding, perfected and
50 enforceable against any purchasers of the fund or the right to receive
51 such payments and all parties having claims of any kind in tort,
52 contract or otherwise against the city, irrespective of whether or not
53 such purchasers or parties have notice thereof. The lien of this subdi-
54 vision on amounts in the fund and the right to receive real estate tax
55 payments arises solely by force of this statute and is not to be created
56 or provided for, nor may it be limited, by any agreement. No agreement
S. 5199 4
1 or other instrument by which such lien is created or provided for need
2 be executed nor shall any financing statement be recorded or filed.
3 3. Upon the issuance of any tax anticipation notes, the comptroller
4 shall establish and, so long as any tax anticipation notes shall be
5 outstanding, shall maintain a TAN debt service account within the fund
6 for the purpose of paying the principal of tax anticipation notes.
7 4. The city shall determine the date on which the principal due or to
8 become due on an outstanding issue of tax anticipation notes shall equal
9 ninety percent of the available tax levy with respect to such issue, and
10 upon reasonable notice thereof the comptroller shall commence on such
11 date to pay into the TAN debt service account from collections of such
12 taxes and assessments, after retaining amounts required to be deposited
13 in the fund, amounts sufficient to pay when due the principal of such
14 issue of tax anticipation notes. The payments of the principal of tax
15 anticipation notes shall be made, first, from amounts retained in the
16 TAN debt service account.
17 5. Upon the issuance of any revenue anticipation notes, the comp-
18 troller shall establish and, so long as any revenue anticipation notes
19 shall be outstanding, shall maintain a RAN debt service account within
20 the fund for the purpose of paying the principal of revenue anticipation
21 notes. Each specific type of revenue in anticipation of which such notes
22 are issued and available for such purpose shall be deposited in such
23 account immediately upon receipt by the city. Where such revenue
24 consists of state aid or other revenue to be paid to the city by the
25 comptroller, on the date such revenue is payable to the city, the comp-
26 troller shall deposit such revenue directly into such account in lieu of
27 payment to the city.
28 6. The city shall determine the date on which the principal due or to
29 become due on an outstanding issue of revenue anticipation notes shall
30 equal ninety percent of the total amount of revenue against which such
31 notes were issued remaining to be paid to the city on or before the
32 fifth day prior to the maturity date of such notes and upon reasonable
33 notice thereof the comptroller shall commence on such date to retain in
34 the RAN debt service account from amounts deposited or to be deposited
35 therein of each specific type of revenue in anticipation of which reven-
36 ue such anticipation notes were issued, an amount sufficient to pay,
37 when due, the principal of such revenue anticipation notes. Monies
38 retained in such account shall vest immediately in the comptroller in
39 trust for the benefit of the holders of the revenue anticipation notes
40 in anticipation of which such notes were issued. No person having any
41 claim of any kind in tort, contract or otherwise against such city shall
42 have any right to or claim against any monies of the state appropriated
43 by the state and in anticipation of which such notes have been issued,
44 other than a claim for payment by the holders of such notes, and such
45 monies shall not be subject to any order, judgment, lien, execution,
46 attachment, setoff or counter-claim by any such person; provided, howev-
47 er, that nothing contained in this paragraph shall be construed to
48 limit, impair, impede or otherwise adversely affect in any manner the
49 rights or remedies of the purchasers and holders and owners of any bonds
50 or notes of the state or any agency, instrumentality, public benefit
51 corporation or political subdivision thereof, including the city, under
52 which such purchasers and holders and owners have any right of payment
53 of such bonds or notes by recourse to state aid or local assistance
54 monies held by the state or for the payment of which bonds or notes
55 state aid or local assistance monies are a designated source. The
S. 5199 5
1 payment of the principal of revenue anticipation notes shall be made
2 first from amounts retained in the RAN debt service account.
3 7. Whenever the amount contained in the TAN debt service account or
4 the RAN debt service account exceeds the amount required to be retained
5 in such account, such excess monies, including earnings on investments
6 of monies in the fund, shall be withdrawn from such account and paid
7 into the general fund of the city or otherwise in accordance with law.
8 8. Subject to agreements made with holders or guarantors of outstand-
9 ing notes or bonds issued by or for the benefit of the city, the comp-
10 troller shall invest the monies retained in the fund in accordance with
11 law.
12 9. Notwithstanding any other provision of this paragraph, the city may
13 at any time, subject to approval by the comptroller, designate a trust
14 company or bank having its principal place of business in the state of
15 New York and having the powers of a trust company in the state of New
16 York to hold (in trust and subject to a lien to the extent specified in
17 subdivision two of this paragraph) all or any part of the monies in the
18 fund and to administer and maintain the monies so held in accordance
19 with the applicable provisions of this section and any agreements made
20 pursuant thereto.
21 c. 1. In the event that any notes or bonds are issued by the city, and
22 in addition to any other pledge or agreement authorized by law, the
23 state of New York hereby authorizes the city to include a pledge and
24 agreement of the state of New York in any agreement made by the city
25 with holders or guarantors of such notes or bonds of the city that the
26 state will not take any action which will substantially impair the inde-
27 pendent maintenance of a separate fund for the payment of debt service
28 on bonds and notes of the city, or the statutory lien created by subdi-
29 vision two of paragraph b of this section; provided, however, that the
30 foregoing pledge and agreement shall be of no further force and effect
31 if at any time (i) there is on deposit in a separate trust account with
32 a bank, trust company or other fiduciary sufficient moneys or direct
33 obligations of the United States or obligations guaranteed by the United
34 States, the principal of and/or interest on which will provide moneys to
35 pay punctually when due at maturity or prior to maturity by redemption,
36 in accordance with their terms, all principal of and interest on all
37 outstanding notes and bonds of the city containing this pledge and
38 agreement and irrevocable instructions from the city to such bank, trust
39 company or other fiduciary for such payment of such principal and inter-
40 est with such moneys shall have been given, or (ii) such notes and
41 bonds, together with interest thereon, have been paid in full at maturi-
42 ty or have otherwise been refunded, redeemed, defeased, or discharged;
43 and provided further that the foregoing pledge and agreement shall be of
44 full force and effect upon its inclusion in any agreement made by the
45 city with holders or guarantors of such notes or bonds.
46 2. Upon payment for such obligations issued pursuant to this section
47 by the original and all subsequent holders, inclusion of the foregoing
48 covenant shall be deemed conclusive evidence of valuable consideration
49 received by the state and city for such covenant and of reliance upon
50 such pledge and agreement by any such holder. The state hereby grants
51 any such benefited holder the right to sue the state in a court of
52 competent jurisdiction and enforce this covenant and agreement and
53 waives all rights of defense based on sovereign immunity in such an
54 action or suit.
55 3. The finance board of the city is hereby authorized to enter into
56 agreements and to make covenants with any purchaser, holder or guarantor
S. 5199 6
1 of obligations issued by the city to protect and safeguard the security
2 and rights of a purchaser, holder or guarantor or to protect and safe-
3 guard the source of payment of such obligations or as deemed appropriate
4 by such finance board, which agreements or covenants may contain
5 provisions providing for (a) restrictions on the issuance by the city of
6 its obligations, limitations on the inclusion of expense items in its
7 capital budgets and financial records, reporting and disclosure require-
8 ments not inconsistent with any such restrictions, limitations or
9 requirements of law, (b) conditions that would give rise to an event of
10 default on such obligations, and (c) remedies available to a purchaser,
11 holder or guarantor of such obligations, other than acceleration or the
12 required elimination or reduction of specific municipal expenditures,
13 including the circumstances, if any, under which a trustee or trustees
14 or a fiscal agent may be appointed or may act as a representative of
15 holders of obligations issued by the city in connection with an issue or
16 issues of obligations of the city and the rights, powers and duties
17 which may be vested in such trustee, trustees or fiscal agent as such
18 representative. The state of New York hereby pledges and agrees that it
19 will take no action that would impair the power of the city to comply
20 with or to perform any covenant or agreement made pursuant to this
21 subdivision, or any right or remedy of a purchaser, holder or guarantor
22 to enforce such covenant or agreement; and the city is hereby authorized
23 to include such pledge and agreement in any agreement made pursuant to
24 this subdivision.
25 4. Nothing contained in this paragraph shall preclude the state from
26 authorizing the city to exercise, or the city from exercising, any power
27 provided by law to seek application of laws then in effect under the
28 bankruptcy provisions of the United States constitution or shall
29 preclude the state from validly exercising its police powers or from a
30 further exercise of its powers under article eight, section twelve, of
31 the state constitution.
32 d. The general debt service fund established under the New York state
33 financial emergency act for the city of New York shall be the fund main-
34 tained and continued pursuant to this section, and the provisions of
35 this section, including but not limited to the statutory lien created by
36 subdivision two of paragraph b of this section, shall be fully applica-
37 ble thereto in addition to the provisions of such act, and notwithstand-
38 ing the termination of such act. The pledge and agreement authorized by
39 paragraph c of this section shall be in addition to any pledge or agree-
40 ment authorized by such act.
41 § 4. Severability clause. If any clause, sentence, paragraph, section
42 or part of this act shall be adjudged by any court of competent juris-
43 diction to be invalid, such judgment shall not affect, impair or invali-
44 date the remainder thereof, but shall be confined in its operation to
45 the clause, sentence, paragraph, section or part thereof directly
46 involved in the controversy in which such judgment shall have been
47 rendered. It is hereby declared to be the intent of the legislature that
48 this act would have been enacted even if such invalid provisions had not
49 been included herein.
50 § 5. This act shall take effect immediately.
