STATE OF NEW YORK
________________________________________________________________________
740
2013-2014 Regular Sessions
IN SENATE(Prefiled)
January 9, 2013
___________
Introduced by Sens. FUSCHILLO, DeFRANCISCO, GOLDEN, LIBOUS, MARTINS,
MAZIARZ -- read twice and ordered printed, and when printed to be
committed to the Committee on Transportation
AN ACT to amend the transportation law, the executive law and the public
authorities law, in relation to authorizing innovative infrastructure
development
The People of the State of New York, represented in Senate and Assem-bly, do enact as follows:
1 Section 1. This act shall be known and may be cited as the "innova-
2 tive infrastructure development act".
3 § 2. The transportation law is amended by adding a new article 24 to
4 read as follows:
5 ARTICLE 24
6 INNOVATIVE INFRASTRUCTURE DEVELOPMENT
7 Section 500. Definitions.
8 501. Authority of the commissioner.
9 502. Transportation infrastructure projects.
10 503. Cost analysis.
11 504. Preparation of preliminary solicitations.
12 505. Preliminary acceptance of best value proposals.
13 506. General provisions.
14 507. Agreements.
15 508. Revenues.
16 509. Condemnation and operation in the event of a default.
17 510. Federal, state and local assistance.
18 511. Police powers; violations of law.
19 512. Powers and duties of the private entity.
20 513. Confidentiality.
21 514. Severability clause.
EXPLANATION--Matter in italics (underscored) is new; matter in brackets
[] is old law to be omitted.
LBD01412-02-3
S. 740 2
1 § 500. Definitions. As used in this article, unless a different mean-
2 ing appears from the context, the following terms shall mean:
3 1. "Private entity" means any association, corporation, limited
4 liability company, partnership, firm, business trust, joint venture, not
5 for profit entity, fund or other private business entity.
6 2. "Public entity" means the state, the federal government, any other
7 state, any bi-state authority or commission, any multi-state authority
8 or commission, any multi-national authority or commission, any nation,
9 any province, or any agency, commission, public authority, public bene-
10 fit corporation, political subdivision or municipality thereof, or any
11 other governmental entity, or any combination of any of the foregoing.
12 3. "Transportation infrastructure" means (a) highways, railroads,
13 airports, transit facilities, buses, ferries, bridges, tunnels, tracks,
14 vehicles, ports, rolling stock, equipment, parking facilities, transit
15 stations, bus stations, intermodal centers, terminals, rest areas,
16 transportation management and information systems, intelligent transpor-
17 tation systems, land use control and development, fuel storage, energy
18 systems, security systems, seismic control systems, utility relocation,
19 and rights-of-way associated with each mode or facility and related
20 facilities and systems, and; (b) services for the movement of people,
21 vehicles, goods or information on, by or through the use of those items
22 set forth in paragraph (a) of this subdivision, and shall include
23 services provided pursuant to transportation infrastructure agreements.
24 4. "Transportation infrastructure agreement" shall mean any agreement
25 entered into by the commissioner pursuant to section five hundred one of
26 this article.
27 5. "Transportation infrastructure project" shall mean the planning,
28 acquisition, design, engineering, environmental analysis, construction,
29 reconstruction, restoration, rehabilitation, establishment, improvement,
30 renovation, extension, repair, management, operation, maintenance,
31 development and/or financing of transportation infrastructure.
32 6. "Board" shall mean the innovative infrastructure development board
33 as established by section nine hundred thirty of the executive law.
34 § 501. Authority of the commissioner. Notwithstanding the provisions
35 of any law to the contrary, the commissioner is authorized to enter into
36 transportation infrastructure agreements, on such terms and conditions
37 as the commissioner deems appropriate and subject to the approval of the
38 director of the budget and the board, and in accordance with section one
39 hundred twelve of the state finance law, with public and/or private
40 entities to provide for, or in support of, or associated with transpor-
41 tation infrastructure projects. In furtherance of such agreements, the
42 commissioner may:
43 1. accept, in accordance with the state finance law and the public
44 officers law, any appropriation, grant or offer of funds or property or
45 other forms of assistance for the purposes of this article from any
46 public and/or private entity and comply with the terms and conditions
47 thereof;
48 2. accept, pursuant to the terms of a transportation infrastructure
49 agreement entered into pursuant to this section, property or any inter-
50 ests therein and transportation infrastructure to be maintained as part
51 of the state's transportation system. Any such interest in transporta-
52 tion infrastructure so acquired shall be deemed to have been acquired by
53 the commissioner pursuant to section thirty of the highway law;
54 3. utilize any of the powers or authority of the commissioner to
55 achieve the purposes of this article;
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1 4. finance all or any part of the costs to the department or to any
2 public and/or private entity of any transportation infrastructure
3 project, including financing through or accompanied by one or more leas-
4 es or concessions of such project or any part thereof by or to such
5 entity or entities and/or by or to the department; and
6 5. utilize the commissioner's eminent domain powers pursuant to the
7 highway law and the eminent domain procedure law, on such terms and
8 conditions as the commissioner deems appropriate, to acquire property
9 required for transportation infrastructure projects that are the subject
10 of transportation infrastructure agreements with the commissioner pursu-
11 ant to this section.
12 § 502. Transportation infrastructure projects. 1. Transportation
13 infrastructure projects provided pursuant to a transportation infras-
14 tructure agreement shall not be subject to the provisions of any local
15 law, land use review requirements, real property tax or any other local
16 tax.
17 2. Whenever a transportation infrastructure project involves the
18 construction, reconstruction or improvement of a state highway, which is
19 now or which shall hereafter be designated in section three hundred
20 forty-one of the highway law, shall provide for the relocation of such
21 state highway or portion thereof on a location which deviates from the
22 location of the existing highway for a continuous length in excess of
23 one mile as measured along the center line of the existing highway, the
24 commissioner shall before filing the descriptions and the original trac-
25 ings of any maps or proceeding with the acquisition of property or the
26 work of construction, reconstruction or improvement, transmit such plans
27 to the board of supervisors of each county in which such relocation or
28 any portion thereof is situated. In case the relocation or any portion
29 thereof as proposed, is situated in a county other than the county in
30 which the existing highway or portion thereof is located, such plans
31 shall be transmitted to both of such counties and shall be subject to
32 review by each of such counties in the manner as hereinafter provided.
33 The board of supervisors, after the receipt of such plans, may conduct a
34 public hearing or hearings upon such notice as such board of supervisors
35 shall deem reasonable, but not less than ten days, to the commissioner
36 and to such other party or parties deemed by said board of supervisors
37 to be interested in the project. In any event, and within forty-five
38 days after receipt of the plans, the board of supervisors shall, by
39 resolution, duly adopted by a majority vote of its members, provide a
40 recommendation of approval, disapproval or modification in such plans as
41 the public interest shall require. Such resolution shall be forwarded to
42 the commissioner within five days of adoption. In case such relocation
43 is situated in two or more counties, such resolution must be separately
44 adopted by the board of supervisors of each county as to the relocation
45 situated therein. The form of the resolution shall be prescribed by the
46 commissioner. The commissioner shall in reviewing any transportation
47 infrastructure project proposal subject to this subdivision take any
48 resolution adopted pursuant to this subdivision into consideration. Upon
49 the failure or omission of any board of supervisors to act within the
50 time and manner herein required, the said plans shall be deemed to be
51 acceptable so far as such board of supervisors is concerned.
52 § 503. Cost analysis. Prior to any solicitation of proposals made
53 pursuant to section nine hundred thirty-one of the executive law, the
54 commissioner shall conduct a study and issue a report which shall detail
55 the risk adjusted estimated life of project cost for the proposed trans-
S. 740 4
1 portation infrastructure project were the department to undertake such
2 project through traditional means of procurement and financing.
3 § 504. Preparation of preliminary solicitations. Notwithstanding any
4 provision of law to the contrary, the commissioner is authorized to
5 prepare preliminary solicitations for the provision of transportation
6 infrastructure projects. Such a solicitation shall set forth the
7 proposed parameters for the transportation infrastructure project and
8 shall be subject to approval of the board pursuant to section nine
9 hundred thirty-one of the executive law.
10 § 505. Preliminary acceptance of best value proposals. 1. After a
11 solicitation made pursuant to section nine hundred thirty-one of the
12 executive law, the commissioner shall review all proper proposals and
13 may preliminarily accept and advance to the board for approval the
14 proposal that is determined by the commissioner to be the best value as
15 defined in section one hundred sixty-three of the state finance law,
16 considering the following:
17 (a) a public need for the proposed transportation infrastructure
18 project;
19 (b) the reasonableness of estimated costs, benefits and liabilities of
20 the proposed transportation infrastructure project;
21 (c) the compatibility of the proposed transportation infrastructure
22 project and the scheduling of its development or implementation and its
23 connections to or role within the existing transportation system and the
24 compatibility with the transportation plans of the state and of any
25 affected local jurisdictions;
26 (d) the feasibility of the financing of the development, construction,
27 implementation and/or operation of the proposed transportation infras-
28 tructure project;
29 (e) the qualifications, experience, and financial capacity of the
30 public and/or private entity providing the transportation infrastructure
31 project; and
32 (f) whether the proposed transportation infrastructure project satis-
33 fies any other criteria established in the solicitation made pursuant to
34 section nine hundred thirty-one of the executive law.
35 2. The commissioner shall not accept or advance any proposal unless
36 the aggregate life of project cost for the transportation infrastructure
37 project is less than the estimate provided in the cost analysis made
38 pursuant to section five hundred three of this article.
39 § 506. General provisions. 1. Nothing in this article shall be
40 construed to require the commissioner or board to accept any proposal,
41 or enter into any agreement with any public and/or private entity.
42 2. Nothing in this article shall be deemed to limit the applicability
43 of existing powers and authority of the commissioner or to require the
44 commissioner to advance any project through the provisions of this arti-
45 cle.
46 3. Notwithstanding any provision of law to the contrary, the depart-
47 ment may convey any interest in property under the jurisdiction of the
48 department to a public and/or private entity pursuant to the terms of a
49 transportation infrastructure agreement entered into pursuant to section
50 five hundred one of this article, provided however that no such convey-
51 ance shall be a fee simple absolute and any conveyance of an interest in
52 property in excess of thirty-five years shall require approval by a
53 super-majority of the board pursuant to article forty-three of the exec-
54 utive law.
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1 4. Nothing in this article shall be construed as a waiver of or limi-
2 tation upon the sovereign immunity of the state or any instrumentality
3 thereof.
4 5. The commissioner is hereby authorized to promulgate any rules and
5 regulations deemed necessary or desirable for the implementation of this
6 article.
7 6. Projects undertaken by the commissioner pursuant to this article
8 shall be subject to the requirements of article eight of the environ-
9 mental conservation law, and, where applicable, the requirements of the
10 national environmental policy act.
11 § 507. Agreements. Notwithstanding any provision of law to the contra-
12 ry, the commissioner, through transportation infrastructure agreements
13 entered into pursuant to section five hundred one of this article, may
14 provide for:
15 1. The planning, acquisition, design, engineering, environmental anal-
16 ysis, construction, reconstruction, rehabilitation, restoration, estab-
17 lishment, improvement, renovation, extension, repair, management, opera-
18 tion, maintenance, development and/or financing of transportation
19 infrastructure by a single public or private entity or combination of
20 public and private entities;
21 2. The allocation of responsibility and timing for specific project
22 elements, revenue-sharing arrangements, allocation of financial respon-
23 sibility for cost overruns, allocation of development costs, insurance
24 or surety requirements, liability for non-performance, standards and
25 incentives for performance, default, termination, buy-back, renegoti-
26 ation or amendment clauses, inspection clauses, financial reporting,
27 accounting and auditing standards, environmental performance standards,
28 any other rights and duties; and
29 3. The crossing of any street, highway, railroad, canal or navigable
30 water course or right-of-way, or other roadway so long as the crossing
31 does not unreasonably interfere with the reasonable use thereof.
32 § 508. Revenues. Any department revenues derived from any lease,
33 concession or other financing structure pursuant to a transportation
34 infrastructure agreement may only be used for the purpose of the devel-
35 opment of transportation infrastructure.
36 § 509. Condemnation and operation in the event of a default. In the
37 event a public or private entity defaults on its obligations under a
38 transportation infrastructure agreement entered into pursuant to section
39 five hundred one of this article, the commissioner with board approval
40 is hereby authorized but not required to acquire, in the name of the
41 people of the state, all or any portion of any transportation infras-
42 tructure constructed or under construction by such public or private
43 entity, with any damages suffered to the state as a result of such
44 default being an offset to the compensation provided for the acquisition
45 of the transportation infrastructure. The commissioner, with board
46 approval, may also terminate the transportation infrastructure agreement
47 and exercise any other rights or remedies which may be available to the
48 department at law or in equity. In the event of such acquisition and
49 notwithstanding any provision of law to the contrary, the department is
50 hereby authorized, but is not required, to operate and maintain the
51 transportation infrastructure.
52 § 510. Federal, state and local assistance. 1. Notwithstanding any
53 provision of law to the contrary, the commissioner, in relation to
54 transportation infrastructure agreements entered into pursuant to
55 section five hundred one of this article, may:
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1 (a) Take any action to obtain federal, state or local assistance for a
2 transportation infrastructure project that serves the purposes of this
3 article and may enter into any contracts required to receive such
4 assistance. The commissioner may use such assistance for the implementa-
5 tion of the transportation infrastructure agreements entered into pursu-
6 ant to section five hundred one of this article.
7 (b) Agree to make grants or loans or other forms of assistance for the
8 development and/or operation of the transportation infrastructure
9 project from time to time from amounts received from the federal, state,
10 or any local government, or any agency or instrumentality thereof.
11 2. Nothing in this article or in a transportation infrastructure
12 agreement entered into pursuant to this article shall be deemed to
13 enlarge, diminish or affect the authority, if any, concerning the debt
14 capacity of the state or any other public entity.
15 § 511. Police powers; violations of law. Notwithstanding any
16 provisions of law to the contrary:
17 1. All police officers of the state and of each affected local juris-
18 diction, shall have the same powers and jurisdiction within the limits
19 of the transportation infrastructure as they have in their respective
20 areas of jurisdiction and such police officers shall have access to the
21 transportation infrastructure at any time for the purpose of exercising
22 such powers and jurisdiction. This authority does not extend to the
23 private offices, buildings, garages, and other improvements of a private
24 entity to any greater degree than the police power extends to any other
25 private buildings and improvements.
26 2. To the extent the transportation infrastructure is a highway, road,
27 bridge, tunnel, overpass, or similar transportation infrastructure for
28 motor vehicles, the traffic and motor vehicle laws generally applicable
29 to such infrastructure under the jurisdiction of the department shall
30 apply to conduct on the transportation infrastructure. Punishment for
31 offenses shall be as prescribed by law for conduct occurring on similar
32 transportation infrastructure in the state.
33 § 512. Powers and duties of the private entity. Notwithstanding any
34 provisions of law to the contrary:
35 1. The private entity shall have all power allowed by law generally to
36 a private entity having the same form of organization as the private
37 entity and shall have the power to develop, maintain and/or operate the
38 transportation infrastructure and/or enter into service contracts or
39 other agreements in connection with the use thereof.
40 2. The private entity may lease or acquire any other right to use or
41 develop, maintain and/or operate the transportation infrastructure
42 consistent with subdivision three of section five hundred six of this
43 article.
44 § 513. Confidentiality. Any request for proposal or agreement entered
45 pursuant to this article shall make provision for the protection of
46 interests and rights in intellectual property and trade secrets and
47 confidential information otherwise protected by state or federal law.
48 § 514. Severability clause. If any section, clause or provision of
49 this article shall be determined to be unconstitutional or be ineffec-
50 tive in whole or in part, to the extent that it is not unconstitutional
51 or ineffective, it shall be valid and effective and no other section,
52 clause or provision shall, on account thereof, be deemed invalid or
53 ineffective.
54 § 3. The executive law is amended by adding a new article 43 to read
55 as follows:
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1 ARTICLE 43
2 INNOVATIVE INFRASTRUCTURE DEVELOPMENT BOARD
3 Section 930. Innovative infrastructure development board.
4 931. Powers and duties.
5 § 930. Innovative infrastructure development board. 1. There is hereby
6 established in the executive department an innovative infrastructure
7 development board ("board") to consist of nine members, who shall be
8 appointed as follows: (a) three shall be appointed by the governor,
9 provided that one shall be the commissioner of transportation and of the
10 remaining two, one each shall be from each of the two major political
11 parties; (b) two shall be appointed on the written recommendation of the
12 temporary president of the senate; (c) two shall be appointed on the
13 written recommendation of the speaker of the assembly; (d) one shall be
14 appointed on the written recommendation of the minority leader of the
15 senate; and (e) one shall be appointed on the written recommendation of
16 the minority leader of the assembly.
17 2. The governor shall designate the chair from among the members of
18 the board.
19 3. (a) At least one member each appointed by the governor, temporary
20 president of the senate and speaker of the assembly shall be an expert
21 in transportation, and/or public finance and/or infrastructure manage-
22 ment.
23 (b) At least one member each appointed by the governor, temporary
24 president of the senate and speaker of the assembly shall be from the
25 private sector, provided, however that the member appointed pursuant to
26 this paragraph may be the same as that member appointed pursuant to
27 paragraph (a) of this subdivision.
28 (c) No member of the board shall also be a member of the legislature.
29 4. The members of the board shall receive no compensation for their
30 service as members, but shall be entitled to actual necessary expenses
31 incurred in the performance of their duties. Members of the board shall
32 be considered public officers for purposes of section seventeen of the
33 public officers law.
34 5. A quorum shall consist of a majority of the members of the board. A
35 quorum shall be required to conduct business. Approval of any matter
36 properly before the board shall require the affirmative vote of the
37 majority of the board; provided however that any provision of a trans-
38 portation infrastructure agreement, as defined in section five hundred
39 of the transportation law or subdivision one of section three hundred
40 eighty-nine of the public authorities law, which provides for the
41 conveyance of any interest in excess of thirty-five years shall require
42 an affirmative vote by a super-majority of six members for approval.
43 6. Meetings shall be called by the chair or by a majority of those
44 members appointed. Meetings shall be held at least bi-annually.
45 7. The board may appoint such officers and employees as it may require
46 for the performance of its duties and fix and determine their qualifica-
47 tions, duties, and compensation, and retain or employ counsel, auditors
48 and private financial consultants and other services on a contract basis
49 or otherwise for rendering professional, business or technical services
50 and advice; such authority shall be subject to appropriation.
51 8. The board shall establish by-laws for the management and regulation
52 of its affairs.
53 § 931. Powers and duties. 1. Solicitation of proposals. The board may
54 approve and publicly solicit a preliminary proposal advanced pursuant to
55 section five hundred four of the transportation law or subdivision four
56 of section three hundred eighty-nine of the public authorities law, or
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1 may publicly solicit other proposals from public and/or private entities
2 for transportation infrastructure projects as defined in subdivision six
3 of section five hundred of the transportation law, subdivision one of
4 section three hundred eighty-nine of the public authorities law or
5 subdivision one of section five hundred forty-three of the public
6 authorities law.
7 2. Approval of best value proposals. (a) The board may approve a
8 proposal preliminarily accepted pursuant to section five hundred five of
9 the transportation law, subdivision five of section three hundred eight-
10 y-nine of the public authorities law, subdivision five of section five
11 hundred forty-three of the public authorities law, or any other proposal
12 properly submitted in response to a solicitation made pursuant to subdi-
13 vision one of this section if the board determines that such proposal
14 presents the best value as defined in section one hundred sixty-three of
15 the state finance law considering the following:
16 (i) a public need for the proposed transportation infrastructure
17 project;
18 (ii) the reasonableness of estimated costs, benefits and liabilities
19 of the proposed transportation infrastructure project;
20 (iii) the compatibility of the proposed transportation infrastructure
21 project, and the scheduling of its development or implementation and its
22 connections to or role within the existing transportation system and the
23 compatibility with the transportation plans of the state and of any
24 affected local jurisdictions;
25 (iv) the feasibility of the financing of the development,
26 construction, implementation and/or operation of the proposed transpor-
27 tation infrastructure project;
28 (v) the qualifications, experience, and financial capacity of the
29 public and/or private entity providing the transportation infrastructure
30 project; and
31 (vi) whether the proposed transportation infrastructure project satis-
32 fies any other criteria established by the board in the solicitation
33 made pursuant to subdivision one of this section.
34 (b) The board shall not approve any proposal unless the aggregate life
35 of project cost for the transportation infrastructure project is less
36 than the estimate provided in the cost analysis made pursuant to section
37 five hundred three of the transportation law, subdivision three of
38 section three hundred eighty-nine of the public authorities law or
39 subdivision three of section five hundred forty-three of the public
40 authorities law.
41 (c) The board may only approve a proposal containing the conveyance of
42 any interest in excess of thirty-five years with the affirmative vote of
43 a super-majority as set forth in subdivision five of section nine
44 hundred thirty of this article.
45 3. Approval of transportation infrastructure agreements. Board
46 approval shall be required of any transportation infrastructure agree-
47 ment to be entered into pursuant to section five hundred one of the
48 transportation law, subdivision two of section three hundred eighty-nine
49 of the public authorities law, or subdivision two of section five
50 hundred forty-three of the public authorities law.
51 4. Approval of acquisition of all or part of transportation infras-
52 tructure. Board approval shall be required for the acquisition of all or
53 any part of any transportation infrastructure pursuant to section five
54 hundred ten of the transportation law or subdivision nine of section
55 three hundred eighty-nine of the public authorities law.
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1 5. Annual report. The board shall prepare an annual report and shall
2 submit such report on or before January thirty-first of each year to the
3 governor, the temporary president of the senate, the speaker of the
4 assembly and the chairs of the senate and assembly transportation
5 committees. (a) The annual report shall include, but need not be limited
6 to:
7 (i) details of any solicitation or preliminary solicitation made or
8 prepared during the reporting period;
9 (ii) details of any proposal submitted or accepted pursuant to a
10 public solicitation during the reporting period;
11 (iii) details on the progress of ongoing transportation infrastructure
12 project agreement negotiations;
13 (iv) details on any amendments to existing transportation infrastruc-
14 ture agreements during the reporting period;
15 (v) details of ongoing transportation infrastructure projects, includ-
16 ing but not limited to the meeting or failure to meet any time dead-
17 lines, the achievement or failure to achieve any performance goals, any
18 cost overruns, any default and any other information pertinent to the
19 project's ongoing operation; and
20 (vi) an accounting of any revenues and expenditures associated with
21 ongoing transportation infrastructure projects during the reporting
22 period.
23 (b) The annual report may additionally include any recommendations for
24 legislation related to transportation infrastructure project develop-
25 ment.
26 § 4. The public authorities law is amended by adding a new section 389
27 to read as follows:
28 § 389. Innovative infrastructure development. Notwithstanding any
29 other provisions of law to the contrary:
30 1. As used in this section, unless a different meaning appears from
31 the context, the terms:
32 (a) "Private entity" means any association, corporation, limited
33 liability company, partnership, firm, business trust, joint venture,
34 not-for-profit entity, fund or other private business entity.
35 (b) "Public entity" means the state, the federal government, any other
36 state, any bi-state authority or commission, any multi-state authority
37 or commission, any multi-national authority or commission, any nation,
38 any province, or any agency, commission, public authority, public bene-
39 fit corporation, political subdivision or municipality thereof, or any
40 other governmental entity, or any combination of the foregoing.
41 (c) "Transportation infrastructure" means the thruway system as
42 defined in section three hundred fifty-one of this title and the
43 provisions for the movement of people, vehicles, goods or information
44 on, by or through the use of the thruway system and shall include
45 services provided pursuant to transportation infrastructure agreements.
46 (d) "Transportation infrastructure agreement" shall mean any agreement
47 entered into by the authority pursuant to subdivision two of this
48 section.
49 (e) "Transportation infrastructure project" shall mean the planning,
50 acquisition, design, engineering, environmental analysis, construction,
51 reconstruction, restoration, rehabilitation, establishment, improvement,
52 renovation, extension, repair, management, operation, maintenance,
53 development and/or financing of transportation infrastructure, includ-
54 ing, but not limited to, agreements relating to the distribution of fare
55 and toll payment media and electronic payment devices, and the estab-
S. 740 10
1 lishment and collection of user fees, pursuant to one or more transpor-
2 tation infrastructure agreements.
3 (f) "User fees" means the rates, tolls, fares, rentals or fees or
4 other charges imposed for or associated with the use and operation of
5 all or a portion of transportation infrastructure pursuant to a trans-
6 portation infrastructure agreement.
7 (g) "Board" means the innovative infrastructure development board as
8 established by section nine hundred thirty of the executive law.
9 2. Notwithstanding the provisions of any law to the contrary, the
10 authority is authorized, as additional corporate purposes thereof, to
11 enter into transportation infrastructure agreements, on such terms and
12 conditions as the authority deems appropriate and subject to the
13 approval of the director of budget and the board, and in accordance with
14 section one hundred twelve of the state finance law, with public and/or
15 private entities to provide for, or in support of, or associated with
16 transportation infrastructure projects. In furtherance of such agree-
17 ments, the authority may:
18 (a) accept in accordance with the state finance law and the public
19 officers law, any appropriation, grant, or offer of funds or property or
20 other forms of assistance for the purposes of this section from any
21 public and/or private entity and to comply with the terms and conditions
22 thereof;
23 (b) accept, pursuant to the terms of a transportation infrastructure
24 agreement, property or any interest therein and transportation infras-
25 tructure to be maintained as part of the thruway system. Any such inter-
26 est in transportation infrastructure so acquired shall be deemed to have
27 been acquired by the authority or at the authority's request pursuant to
28 this title;
29 (c) utilize any of its powers or authority to achieve the purposes of
30 this section including but not limited to the power to issue bonds,
31 notes and other obligations;
32 (d) finance all or any part of the costs to the authority or to any
33 public and/or private entity of any transportation infrastructure
34 project, including financing through or accompanied by one or more leas-
35 es or concessions of such project or any part thereof by or to such
36 entity or entities and/or by or to the authority or any of its subsid-
37 iaries or affiliates;
38 (e) utilize the authority's eminent domain powers, pursuant to
39 sections three hundred fifty-eight and three hundred fifty-eight-a of
40 this title, on such terms and conditions as the authority deems appro-
41 priate, to acquire property required for transportation infrastructure
42 projects; and
43 (f) provide for the collection and/or retention of user fees pursuant
44 to this article; provided however that any provision of a transportation
45 infrastructure agreement which provides for increases in user fees on
46 infrastructure currently subject to user fees, establishment of user
47 fees in a new location on infrastructure currently subject to user fees,
48 or the establishment of user fees on newly constructed infrastructure or
49 infrastructure improved to increase capacity shall be consistent with
50 the powers of the authority to establish or increase user fees pursuant
51 to this title.
52 3. Cost analysis. Prior to any solicitation of proposals made pursuant
53 to section nine hundred thirty-one of the executive law the authority
54 shall conduct a study and issue a report which shall detail the risk
55 adjusted estimated life of project cost for the proposed transportation
S. 740 11
1 infrastructure project were the authority to undertake such project
2 through traditional means of procurement and financing.
3 4. Notwithstanding any provision of law to the contrary, the authority
4 is authorized to prepare preliminary solicitations for the provision of
5 transportation infrastructure projects. Such solicitations shall set
6 forth the proposed parameters of the project and shall be subject to
7 approval of the board pursuant to section nine hundred thirty-one of the
8 executive law.
9 5. (a) After a solicitation made pursuant to section nine hundred
10 thirty-one of the executive law, the authority shall review all proper
11 proposals and may preliminarily accept and advance to the board for
12 approval the proposal that is determined by the authority to be the best
13 value as defined in section one hundred sixty-three of the state finance
14 law considering the following:
15 (i) a public need for the proposed transportation infrastructure
16 project;
17 (ii) the reasonableness of estimated costs, benefits and liabilities
18 of the proposed transportation infrastructure project;
19 (iii) the compatibility of the proposed transportation infrastructure
20 project and the scheduling of its development or implementation and its
21 connections to or role within the existing thruway system and the
22 compatibility with the transportation plans of the authority and of any
23 state or local jurisdictions;
24 (iv) the feasibility of the financing of the development,
25 construction, implementation and/or operation of the proposed transpor-
26 tation infrastructure project;
27 (v) the qualifications, experience, and financial capacity of the
28 public and/or private entity providing the transportation infrastructure
29 project; and
30 (vi) whether the proposed transportation infrastructure project satis-
31 fies any other criteria established in the solicitation made pursuant to
32 section nine hundred thirty-one of the executive law.
33 (b) The authority shall not accept or advance any proposal unless the
34 aggregate life of project cost for the transportation infrastructure
35 project is less than the estimate provided in the cost analysis made
36 pursuant to subdivision three of this section.
37 6. (a) Nothing in this section shall be construed to require the
38 authority or board to make any solicitation, accept any proposal or
39 enter into any agreement with any public and/or private entity.
40 (b) Nothing in this section shall be deemed to: (i) limit the author-
41 ity's existing powers and authority; (ii) require the authority to
42 accept any project through the provisions of this section; (iii) require
43 the authority to enter into any agreements pursuant to this section; or
44 (iv) require the authority to take any action that would contradict or
45 impair any existing authority contract or agreement with its bondholders
46 or other entities.
47 (c) Notwithstanding any provision of law to the contrary, the authori-
48 ty may convey an interest in property, in which the authority has an
49 interest to a public and/or private entity pursuant to the terms of a
50 transportation infrastructure agreement, provided however that no such
51 interest shall be a fee simple absolute and any conveyance of an inter-
52 est in property in excess of thirty-five years shall require approval of
53 a super-majority of the board pursuant to article forty-three of the
54 executive law.
S. 740 12
1 (d) The authority is hereby authorized to promulgate any rules and
2 regulations deemed necessary or desirable for the implementation of this
3 section.
4 (e) Projects undertaken by the authority pursuant to this article
5 shall be subject to the requirements of article eight of the environ-
6 mental conservation law, and, where applicable, the requirements of the
7 national environmental policy act.
8 7. Notwithstanding any provision of law to the contrary, transporta-
9 tion infrastructure agreements entered into pursuant to this section may
10 provide for:
11 (a) The planning, acquisition, design, engineering, environmental
12 analysis, construction, reconstruction, restoration, rehabilitation,
13 establishment, improvement, renovation, extension, repair, management,
14 operation, maintenance, development and/or financing of transportation
15 facilities and the provision of transportation infrastructure by a
16 single public or private entity or combination of public and private
17 entities;
18 (b) The allocation of responsibility and timing for specific project
19 elements, revenue-sharing arrangements, allocation of financial respon-
20 sibility for cost overruns, allocation of development costs, insurance
21 or surety requirements, liability for non-performance, standards and
22 incentives for performance, default, termination, buy-back, renegoti-
23 ation or amendment clauses, inspection clauses, financial reporting,
24 accounting and auditing standards, environmental performance standards,
25 any other rights and duties;
26 (c) The imposition by the authority, or the establishment by the
27 public and/or private entity with which the authority contracts pursuant
28 to this section, of user fees and the pledge of all or any portion ther-
29 eof in connection with any financing thereon consistent with paragraph
30 (f) of subdivision two of this section and existing contracts or resol-
31 utions relating thereto; and
32 (d) The crossing of any street, highway, railroad, canal or navigable
33 water course or right-of-way, or other roadway so long as the crossing
34 does not unreasonably interfere with the reasonable use thereof.
35 8. Any authority revenues derived from any lease, concession or other
36 financing structure pursuant to a transportation infrastructure agree-
37 ment may only be used for the purpose of the development of transporta-
38 tion infrastructure.
39 9. In the event a public or private entity defaults on its obligations
40 under a transportation infrastructure agreement entered into pursuant to
41 subdivision two of this section, the authority with board approval is
42 hereby authorized but not required to acquire all or any portion of any
43 transportation infrastructure constructed or under construction or
44 development by or in conjunction with such public or private entity,
45 with any damages suffered to the authority as a result of such default
46 being an offset to the compensation provided for the acquisition of the
47 transportation infrastructure. The authority may also terminate the
48 transportation infrastructure agreement and exercise any other rights or
49 remedies which may be available to it at law or in equity. In the event
50 of such acquisition and notwithstanding any provision of law to the
51 contrary, the authority is hereby authorized, but not required, to oper-
52 ate and maintain the transportation infrastructure, including the impo-
53 sition and collection of applicable user fees.
54 10. Notwithstanding any provisions of law to the contrary, the author-
55 ity, through transportation infrastructure agreements may:
S. 740 13
1 (a) take any action to obtain federal, state or local assistance for a
2 transportation infrastructure project that serves the public purpose of
3 this chapter and may enter into any contracts required to receive such
4 federal assistance. The authority may use such assistance for the imple-
5 mentation of the transportation infrastructure agreements entered into
6 pursuant to subdivision two of this section; and
7 (b) agree to make grants or loans or other forms of assistance for the
8 development and/or operation of the transportation infrastructure
9 project from time to time from amounts received from the federal, state,
10 or local government, or any agency or instrumentality thereof.
11 11. Nothing in this section or in a transportation infrastructure
12 agreement entered into pursuant to this section shall be deemed to
13 enlarge, diminish or affect the authority, if any, otherwise possessed
14 by the authority to take action that would impact the debt capacity of
15 the state or any other public entity.
16 12. Notwithstanding any provisions of law to the contrary:
17 (a) the private entity shall have all power allowed by law generally
18 to a private entity having the same form of organization as the private
19 entity and shall have the power to develop and/or operate the transpor-
20 tation infrastructure and impose user fees pursuant to a transportation
21 infrastructure agreement consistent with paragraph (f) of subdivision
22 two of this section and/or enter into service contracts or other agree-
23 ments in connection with the use thereof;
24 (b) the private entity may lease or acquire any other right to use or
25 develop and/or operate the transportation infrastructure consistent with
26 paragraph (c) of subdivision six of this section; and
27 (c) in operating the transportation infrastructure, the private entity
28 may pursuant to a transportation infrastructure agreement make classi-
29 fications according to reasonable categories for assessment of user fees
30 provided such private entity gets necessary approval in accordance with
31 the terms of the transportation infrastructure agreement.
32 13. Any request for proposal or agreement entered pursuant to this
33 section shall make provision for the protection of interests and rights
34 in intellectual property and trade secrets and information otherwise
35 protected by state or federal law.
36 14. If any clause or provision of this section shall be determined to
37 be unconstitutional or be ineffective in whole or in part, to the extent
38 that it is not unconstitutional or ineffective, it shall be valid and
39 effective and no other clause or provision shall, on account thereof, be
40 deemed invalid or ineffective.
41 § 5. The public authorities law is amended by adding a new section
42 543 to read as follows:
43 § 543. Innovative infrastructure development. Notwithstanding any
44 other provisions of law to the contrary:
45 1. As used in this section, unless a different meaning appears from
46 the context, the terms:
47 (a) "Private entity" means any association, corporation, limited
48 liability company, partnership, firm, business trust, joint venture,
49 not-for-profit entity, fund or other private business entity.
50 (b) "Public entity" means the state, the federal government, any other
51 state, any bi-state authority or commission, any multi-state authority
52 or commission, any multi-national authority or commission, any nation,
53 any province, or any agency, commission, public authority, public bene-
54 fit corporation, political subdivision or municipality thereof, or any
55 other governmental entity, or any combination of the foregoing.
S. 740 14
1 (c) "Transportation infrastructure" means bridges as defined in subdi-
2 vision nine of section five hundred twenty-six of this title and the
3 provisions for the movement of people, vehicles, goods or information
4 on, by or through the use of bridges and shall include services provided
5 pursuant to transportation infrastructure agreements.
6 (d) "Transportation infrastructure agreement" shall mean any agreement
7 entered into by the authority pursuant to subdivision two of this
8 section.
9 (e) "Transportation infrastructure project" shall mean the planning,
10 acquisition, design, engineering, environmental analysis, construction,
11 reconstruction, restoration, rehabilitation, establishment, improvement,
12 renovation, extension, repair, management, operation, maintenance,
13 development and/or financing of transportation infrastructure, includ-
14 ing, but not limited to, agreements relating to the distribution of fare
15 and toll payment media and electronic payment devices, and the estab-
16 lishment and collection of user fees, pursuant to one or more transpor-
17 tation infrastructure agreements.
18 (f) "User fees" means the rates, tolls, fares, rentals or fees or
19 other charges imposed for or associated with the use and operation of
20 all or a portion of transportation infrastructure pursuant to a trans-
21 portation infrastructure agreement.
22 (g) "Board" means the innovative infrastructure development board as
23 established by section nine hundred thirty of the executive law.
24 2. Notwithstanding the provisions of any law to the contrary, the
25 authority is authorized, as additional corporate purposes thereof, to
26 enter into transportation infrastructure agreements, on such terms and
27 conditions as the authority deems appropriate and subject to the
28 approval of the director of budget and the board, and in accordance with
29 section one hundred twelve of the state finance law, with public and/or
30 private entities to provide for, or in support of, or associated with
31 transportation infrastructure projects. In furtherance of such agree-
32 ments, the authority may:
33 (a) accept in accordance with the state finance law and the public
34 officers law, any appropriation, grant, or offer of funds or property or
35 other forms of assistance for the purposes of this section from any
36 public and/or private entity and to comply with the terms and conditions
37 thereof;
38 (b) accept, pursuant to the terms of a transportation infrastructure
39 agreement, property or any interest therein and transportation infras-
40 tructure to be maintained by the authority. Any such interest in trans-
41 portation infrastructure so acquired shall be deemed to have been
42 acquired by the authority or at the authority's request pursuant to this
43 title;
44 (c) utilize any of its powers or authority to achieve the purposes of
45 this section including but not limited to the power to issue bonds,
46 notes and other obligations;
47 (d) finance all or any part of the costs to the authority or to any
48 public and/or private entity of any transportation infrastructure
49 project, including financing through or accompanied by one or more leas-
50 es or concessions of such project or any part thereof by or to such
51 entity or entities and/or by or to the authority or any of its subsid-
52 iaries or affiliates;
53 (e) utilize the authority's eminent domain powers, pursuant to section
54 five hundred twenty-nine of this title, on such terms and conditions as
55 the authority deems appropriate, to acquire property required for trans-
56 portation infrastructure projects; and
S. 740 15
1 (f) provide for the collection and/or retention of user fees pursuant
2 to this article; provided however that any provision of a transportation
3 infrastructure agreement which provides for increases in user fees on
4 infrastructure currently subject to user fees, establishment of user
5 fees in a new location on infrastructure currently subject to user fees,
6 or the establishment of user fees on newly constructed infrastructure or
7 infrastructure improved to increase capacity shall be consistent with
8 the powers of the authority to establish or increase user fees pursuant
9 to this title.
10 3. Cost analysis. Prior to any solicitation of proposals made pursuant
11 to section nine hundred thirty-one of the executive law the authority
12 shall conduct a study and issue a report which shall detail the risk
13 adjusted estimated life of project cost for the proposed transportation
14 infrastructure project were the department to undertake such project
15 through traditional means of procurement and financing.
16 4. Notwithstanding any provision of law to the contrary, the authority
17 is authorized to prepare preliminary solicitations for the provision of
18 transportation infrastructure projects. Such solicitations shall set
19 forth the proposed parameters of the project and shall be subject to
20 approval of the board pursuant to section nine hundred thirty-one of the
21 executive law.
22 5. (a) After a solicitation made pursuant to section nine hundred
23 thirty-one of the executive law, the authority shall review all proper
24 proposals and may preliminarily accept and advance to the board for
25 approval the proposal that is determined by the authority to be the best
26 value as defined in section one hundred sixty-three of the state finance
27 law considering the following:
28 (i) a public need for the proposed transportation infrastructure
29 project;
30 (ii) the reasonableness of estimated costs, benefits and liabilities
31 of the proposed transportation infrastructure project;
32 (iii) the compatibility of the proposed transportation infrastructure
33 project and the scheduling of its development or implementation and its
34 connections to or role within the existing authority infrastructure and
35 the compatibility with the transportation plans of the authority and of
36 any state or local jurisdictions;
37 (iv) the feasibility of the financing of the development,
38 construction, implementation and/or operation of the proposed transpor-
39 tation infrastructure project;
40 (v) the qualifications, experience, and financial capacity of the
41 public and/or private entity providing the transportation infrastructure
42 project; and
43 (vi) whether the proposed transportation infrastructure project satis-
44 fies any other criteria established in the solicitation made pursuant to
45 section nine hundred thirty-one of the executive law.
46 (b) The authority shall not accept or advance any proposal unless the
47 aggregate life of project cost for the transportation infrastructure
48 project is less than the estimate provided in the cost analysis made
49 pursuant to subdivision three of this section.
50 6. (a) Nothing in this section shall be construed to require the
51 authority or board to make any solicitation, accept any proposal or
52 enter into any agreement with any public and/or private entity.
53 (b) Nothing in this section shall be deemed to: (i) limit the authori-
54 ty's existing powers and authority; (ii) require the authority to accept
55 any project through the provisions of this section; (iii) require the
56 authority to enter into any agreements pursuant to this section; or (iv)
S. 740 16
1 require the authority to take any action that would contradict or impair
2 any existing authority contract or agreement with its bondholders or
3 other entities.
4 (c) Notwithstanding any provision of law to the contrary, the authori-
5 ty may convey an interest in property, in which the authority has an
6 interest to a public and/or private entity pursuant to the terms of a
7 transportation infrastructure agreement, provided however that no such
8 interest shall be a fee simple absolute and any conveyance of an inter-
9 est in property in excess of thirty-five years shall require approval of
10 a super-majority of the board pursuant to article forty-three of the
11 executive law.
12 (d) The authority is hereby authorized to promulgate any rules and
13 regulations deemed necessary or desirable for the implementation of this
14 section.
15 (e) Projects undertaken by the authority pursuant to this article
16 shall be subject to the requirements of article eight of the environ-
17 mental conservation law, and, where applicable, the requirements of the
18 national environmental policy act.
19 7. Notwithstanding any provision of law to the contrary, transporta-
20 tion infrastructure agreements entered into pursuant to this section may
21 provide for:
22 (a) The planning, acquisition, design, engineering, environmental
23 analysis, construction, reconstruction, restoration, rehabilitation,
24 establishment, improvement, renovation, extension, repair, management,
25 operation, maintenance, development and/or financing of transportation
26 facilities and the provision of transportation infrastructure by a
27 single public or private entity or combination of public and private
28 entities;
29 (b) The allocation of responsibility and timing for specific project
30 elements, revenue-sharing arrangements, allocation of financial respon-
31 sibility for cost overruns, allocation of development costs, insurance
32 or surety requirements, liability for non-performance, standards and
33 incentives for performance, default, termination, buy-back, renegoti-
34 ation or amendment clauses, inspection clauses, financial reporting,
35 accounting and auditing standards, environmental performance standards,
36 any other rights and duties;
37 (c) The imposition by the authority, or the establishment by the
38 public and/or private entity with which the authority contracts pursuant
39 to this section, of user fees and the pledge of all or any portion ther-
40 eof in connection with any financing thereon consistent with paragraph
41 (f) of subdivision two of this section and existing contracts or resol-
42 utions relating thereto; and
43 (d) The crossing of any street, highway, railroad, canal or navigable
44 water course or right-of-way, or other roadway so long as the crossing
45 does not unreasonably interfere with the reasonable use thereof.
46 8. Any authority revenues derived from any lease, concession or other
47 financing structure pursuant to a transportation infrastructure agree-
48 ment may only be used for the purpose of the development of transporta-
49 tion infrastructure.
50 9. In the event a public or private entity defaults on its obligations
51 under a transportation infrastructure agreement entered into pursuant to
52 subdivision two of this section, the authority with board approval is
53 hereby authorized but not required to acquire all or any portion of any
54 transportation infrastructure constructed or under construction or
55 development by or in conjunction with such public or private entity,
56 with any damages suffered to the authority as a result of such default
S. 740 17
1 being an offset to the compensation provided for the acquisition of the
2 transportation infrastructure. The authority may also terminate the
3 transportation infrastructure agreement and exercise any other rights or
4 remedies which may be available to it at law or in equity. In the event
5 of such acquisition and notwithstanding any provision of law to the
6 contrary, the authority is hereby authorized, but not required, to oper-
7 ate and maintain the transportation infrastructure, including the impo-
8 sition and collection of applicable user fees.
9 10. Notwithstanding any provisions of law to the contrary, the author-
10 ity, through transportation infrastructure agreements may:
11 (a) take any action to obtain federal, state or local assistance for a
12 transportation infrastructure project that serves the public purpose of
13 this chapter and may enter into any contracts required to receive such
14 federal assistance. The authority may use such assistance for the imple-
15 mentation of the transportation infrastructure agreements entered into
16 pursuant to subdivision two of this section; and
17 (b) agree to make grants or loans or other forms of assistance for the
18 development and/or operation of the transportation infrastructure
19 project from time to time from amounts received from the federal, state,
20 or local government, or any agency or instrumentality thereof.
21 11. Nothing in this section or in a transportation infrastructure
22 agreement entered into pursuant to this section shall be deemed to
23 enlarge, diminish or affect the authority, if any, otherwise possessed
24 by the authority to take action that would impact the debt capacity of
25 the state or any other public entity.
26 12. Notwithstanding any provisions of law to the contrary:
27 (a) the private entity shall have all power allowed by law generally
28 to a private entity having the same form of organization as the private
29 entity and shall have the power to develop and/or operate the transpor-
30 tation infrastructure and impose user fees pursuant to a transportation
31 infrastructure agreement consistent with paragraph (f) of subdivision
32 two of this section and/or enter into service contracts or other agree-
33 ments in connection with the use thereof.
34 (b) the private entity may lease or acquire any other right to use or
35 develop and/or operate the transportation infrastructure consistent with
36 paragraph (c) of subdivision six of this section; and
37 (c) in operating the transportation infrastructure, the private entity
38 may pursuant to a transportation infrastructure agreement make classi-
39 fications according to reasonable categories for assessment of user fees
40 provided such private entity gets necessary approval in accordance with
41 the terms of the transportation infrastructure agreement.
42 13. Any request for proposal or agreement entered pursuant to this
43 section shall make provision for the protection of interests and rights
44 in intellectual property and trade secrets and information otherwise
45 protected by state or federal law.
46 14. If any clause or provision of this section shall be determined to
47 be unconstitutional or be ineffective in whole or in part, to the extent
48 that it is not unconstitutional or ineffective, it shall be valid and
49 effective and no other clause or provision shall, on account thereof, be
50 deemed invalid or ineffective.
51 § 6. This act shall take effect immediately.
