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S02813 Summary:

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S02813 Text:

 
                STATE OF NEW YORK
        ________________________________________________________________________
 
                                         2813--C
            Cal. No. 197
 
                               2009-2010 Regular Sessions
 
                    IN SENATE
 
                                      March 3, 2009
                                       ___________
 
        Introduced  by Sens. AUBERTINE, GRIFFO, LITTLE -- read twice and ordered
          printed, and when printed to be committed to the Committee  on  Energy
          and  Telecommunications  -- reported favorably from said committee and
          committed to the Committee on Finance --  committee  discharged,  bill

          amended,  ordered reprinted as amended and recommitted to said commit-
          tee -- recommitted to the Committee on Energy  and  Telecommunications
          in accordance with Senate Rule 6, sec. 8 -- committee discharged, bill
          amended,  ordered reprinted as amended and recommitted to said commit-
          tee -- reported favorably from said committee  and  committed  to  the
          Committee  on  Finance  --  reported  favorably  from  said committee,
          ordered to first and second report, ordered to a third reading, passed
          by Senate and delivered to the Assembly, recalled, vote  reconsidered,
          restored  to  third  reading, amended and ordered reprinted, retaining
          its place in the order of third reading
 
        AN ACT to amend the public authorities law, in relation to  establishing
          the  North  Country  power authority, and providing for its powers and
          duties
 

          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 1-B to read as follows:
     3                                  TITLE 1-B
     4                        NORTH COUNTRY POWER AUTHORITY
     5  Section 1021.   Short title.
     6          1021-a. Definitions.
     7          1021-b. North Country power authority.
     8          1021-c. North Country power authority service area; extension of
     9                    service area.
    10          1021-d. Powers and duties of the authority.
    11          1021-e. Deposit and investment of moneys of the authority.
    12          1021-f. Conflicts of interest.
 

         EXPLANATION--Matter in italics (underscored) is new; matter in brackets
                              [ ] is old law to be omitted.
                                                                   LBD07083-23-0
        S. 2813--C                          2
 
     1          1021-g. Sale of surplus power.
     2          1021-h. Audit and annual reports.
     3          1021-i. Bonds, notes and other obligations of the authority.
     4          1021-j. State and municipalities not liable on bonds or notes or
     5                    other obligations.
     6          1021-k. Agreement of the state.
     7          1021-l. Exemption of the authority from taxation.
     8          1021-m. Actions against the authority.
     9          1021-n. Equal employment opportunity.

    10          1021-o. Limitation of liability; indemnification.
    11          1021-p. Website.
    12          1021-q. Prevailing wage.
    13          1021-r. Periodic review by legislature.
    14          1021-s. Severability.
    15    § 1021. Short title. This title shall be known and may be cited as the
    16  "North Country power authority act".
    17    §  1021-a. Definitions. As used or referred to in this title, unless a
    18  different meaning clearly appears from the context:
    19    1. "Acquire" means, with respect to any right, title or interest in or
    20  to any property, either the act of taking by the exercise of  the  power
    21  of eminent domain, or the acquisition by purchase or otherwise.

    22    2.  "Act"  means  the  North  Country  power authority act, being this
    23  title.
    24    3. "Authority" means the North Country power authority established  by
    25  section one thousand twenty-one-b of this title.
    26    4. "Commission" means the Public Service Commission.
    27    5. "Comptroller" means the state comptroller.
    28    6. "Directors" means the board of directors of the authority.
    29    7.  "Federal  government"  means  the United States of America and any
    30  agency or instrumentality, corporate or otherwise, of the United  States
    31  of America.
    32    8.  "Final  determination"  or  "finally  determined" means a judicial
    33  decision (a) by the highest court of competent jurisdiction, or (b) by a

    34  court of competent jurisdiction from which no appeal has been taken  and
    35  the time within which to appeal has expired.
    36    9.  "NCPA" means the North Country power authority, and its successors
    37  and assigns.
    38    10. "Municipality" means any county, city,  town,  village,  municipal
    39  corporation,  school  district  or  other  political  subdivision of the
    40  state, including any agency, authority  or  public  corporation  of  the
    41  state  or  any  of the foregoing, or any combination thereof, other than
    42  the authority.
    43    11. "Property" means the power distribution system or systems  of  the
    44  authority,  whether  completed  facilities  or projects in construction,
    45  whether situated within or without the territorial limits of the service

    46  area, including the plants, works, structures, poles,  lines,  conduits,
    47  mains,  systems,  instrumentalities  or  parts thereof and appurtenances
    48  thereto, lands, franchises and interest in land, including  lands  under
    49  water and riparian rights, space rights and air rights, contract rights,
    50  substations,  and  distribution  facilities, or any other property inci-
    51  dental to and included in such system or part thereof, and any  improve-
    52  ments, extensions or betterments. The term "property" shall also include
    53  any  and  all  interests  in real property less than full title, such as
    54  easements, rights of way, uses, leases, licenses and all other  incorpo-
    55  real hereditaments and every estate, interest or right, legal or equita-

    56  ble,  including  terms  for years and liens thereon by way of judgments,
        S. 2813--C                          3
 
     1  mortgages or otherwise, and also all claims for damages related to  such
     2  real estate.
     3    12.  "Revenues"  means  all  rates, rents, fees, charges, payments and
     4  other income and receipts derived by the authority from the operation of
     5  the properties of the authority other than the proceeds of the sales  of
     6  its  securities,  including, but not limited to, investment proceeds and
     7  proceeds of insurance, condemnation, and sales or other  disposition  of
     8  assets, together with all federal, state or municipal aid.
     9    13.  "Security" means any bond, note or other obligation issued by the
    10  authority.

    11    14. "State" means the state of New York.
    12    15. "State agency" means any  board,  authority,  agency,  department,
    13  commission,  public  corporation, body politic or instrumentality of the
    14  state.
    15    § 1021-b. North Country power authority. 1. A corporation known as the
    16  North Country power authority is hereby established and charged with the
    17  duties and having the powers provided in this title. The authority shall
    18  be a state authority, a body corporate and politic constituting a public
    19  benefit corporation, a political subdivision of  the  state,  exercising
    20  governmental  and public powers, perpetual in duration, capable of suing
    21  and being sued and having a seal, and which shall have  the  powers  and

    22  duties  enumerated  in  this  title, together with such others as may be
    23  conferred upon it by law.
    24    2. The authority shall be governed by a board of directors  consisting
    25  of  nine  directors,  to  be  residents  of  the service area, and to be
    26  appointed by the governor. Seven such directors shall be appointed  upon
    27  the  recommendation  of the supervisors and mayors of the municipalities
    28  within the following regions, with the designations to be  made  in  the
    29  following  manner: the village of Potsdam will designate one designee to
    30  be forwarded to the governor; the village of  Canton  and  the  town  of
    31  Canton will jointly designate one designee to be forwarded to the gover-
    32  nor;  the  towns of Bombay, Brasher, Fort Covington, Moira and Westville

    33  will jointly designate one designee to be forwarded to the governor; the
    34  towns of Fowler and Gouverneur will jointly designate one designee to be
    35  forwarded to the governor; the  towns  of  Lisbon,  Louisville,  Madrid,
    36  Norfolk  and  Waddington  will  jointly  designate  one  designee  to be
    37  forwarded to the governor; the towns of Potsdam, Stockholm,  Colton  and
    38  the  village  of  Norwood  will  jointly  designate  one  designee to be
    39  forwarded to the governor; and the towns  of  DeKalb,  Edwards,  Hermon,
    40  Russell  and  Pierrepont  will  jointly  designate  one  designee  to be
    41  forwarded to the governor. Every decade the directors shall examine  the
    42  population  of  the  seven regions, and if needed, adjust the make-up or

    43  demarcation of the regions, for the necessity or convenience of perform-
    44  ing its functions and  administering  its  affairs  and  to  maintain  a
    45  reasonable  equality  of  population  between  the regions. The governor
    46  shall select one of the directors to serve  as  chair,  and  such  chair
    47  shall  serve  at  the  pleasure of the governor. The term of office of a
    48  director, including the director serving as chair, shall be five  years,
    49  but  in  the  first  instance  such directors shall be appointed to hold
    50  office as follows: three for one year; three for three years; and  three
    51  for  five  years. Upon resignation of a director, or a vacancy occurring
    52  in any other manner, such vacancy shall be filled by appointment for the

    53  unexpired term. In other respects, all vacancies shall be filled in  the
    54  manner  corresponding  to  the original appointment. Each director shall
    55  continue to hold office and serve until a successor is appointed, quali-
    56  fied and assumes office.
        S. 2813--C                          4
 
     1    3. The members of the board shall serve without compensation but shall
     2  be entitled to reimbursement of  their  actual  and  necessary  expenses
     3  incurred  in the performance of their official duties, as may be author-
     4  ized by the directors, in each case upon  appropriate  documentation  by
     5  the  submitting  director.  No  director  or any entity, the majority of
     6  which is owned or controlled by any director, shall  receive  any  addi-

     7  tional compensation from NCPA or be employed by NCPA in any other capac-
     8  ity by whatever means.
     9    4.  Five  directors  shall  constitute a quorum for the transaction of
    10  business, and the affirmative vote of five directors at a meeting  shall
    11  be  necessary to the validity of any resolution, order or determination.
    12  The directors, in by-laws or by resolution, may allow for attendance  at
    13  a  meeting  of  the  directors  by speaker phone or any other electronic
    14  means by which all meeting participants can hear one another.
    15    5. The directors shall appoint an executive committee of not less than
    16  three directors and shall delegate such duties and  responsibilities  of
    17  the  directors  to the executive committee as it may determine from time

    18  to time, except that the directors shall not delegate to  the  executive
    19  committee  the power to authorize the issuance of securities. The direc-
    20  tors may appoint such additional committees with such duties and respon-
    21  sibilities as they may determine from time to time.
    22    6. (a) The directors shall from time to time select such officers  and
    23  employees,  including  a  chief  executive officer and such engineering,
    24  management and legal officers, and other professional employees, includ-
    25  ing but not limited  to  accounting,  planning,  construction,  finance,
    26  appraisal,  banking  and  trustee services, as the directors may require
    27  for the performance of their duties and shall prescribe the  duties  and
    28  compensation of each such officer and employee.

    29    (b)  If  any employees are hired as a consequence of an acquisition of
    30  the assets of National Grid, they shall be hired subject and be entitled
    31  to all applicable provisions of (i) any existing contract  or  contracts
    32  with  labor  unions  and  (ii)  all existing pension or other retirement
    33  plans. Notwithstanding the provisions of any general, special  or  local
    34  law, the board may determine that such class of employees of the author-
    35  ity may elect to become members of the New York state employees' retire-
    36  ment system on the basis of compensation payable to them by the authori-
    37  ty.
    38    7.  (a)  The authority shall be subject in all respects to the general
    39  supervision and jurisdiction of the public  service  commission  in  the

    40  same  manner as a municipal electric utility is subject to the jurisdic-
    41  tion of the public service commission under the public service law.
    42    (b) The authority shall not make any commitment, enter into any agree-
    43  ment nor incur any indebtedness unless prior approval has been  received
    44  from  the  New  York  state public authorities control board pursuant to
    45  article one-A of this chapter.
    46    (c) In addition to all of the powers of the public service commission,
    47  prior to acquiring any property and commencing operations, the authority
    48  shall secure an order from the commission authorizing  such  acquisition
    49  and  commencement.  The  commission  shall  have  the  power to deny the
    50  authority's application to acquire property and commence operations. The

    51  authority shall comply with any and all requests for documents,  materi-
    52  als,  and  testimony  that the commission may seek. The commission shall
    53  consider, including but not limited to,  the  following  factors  before
    54  issuing  an order:  ratepayer impacts; system reliability; environmental
    55  impacts, conservation of energy resources; preservation or  creation  of
    56  economic opportunities; power efficiency and availability; public health
        S. 2813--C                          5
 
     1  and  welfare;  and  any  other  factor  it deems relevant. The authority
     2  granted pursuant to this paragraph shall terminate upon commencement  of
     3  distribution of power.
     4    8.  The  authority  and  its  corporate existence shall continue until

     5  terminated by law, provided, however, that no such law shall take effect
     6  so long as the  authority  shall  have  securities  outstanding,  unless
     7  adequate provision has been made for the payment thereof.
     8    9.  In the event that the authority does not commence delivering elec-
     9  tric power within ten years of the effective date  of  this  title,  the
    10  authority shall cease to exist and the provisions of this title shall be
    11  of no further force and effect, subject to the terms of any bonds, notes
    12  or other debt obligations then outstanding.
    13    §  1021-c.  North  Country  power authority service area; extension of
    14  service area. 1.  The service area of the North Country power  authority

    15  shall  include all the territory located within so much of the county of
    16  Franklin as constitutes the Towns of Bombay, Fort Covington,  Moira  and
    17  Westville, and so much of the county of St.  Lawrence as constitutes the
    18  Towns  of  Brasher, Canton, Colton, DeKalb, Edwards, Fowler, Gouverneur,
    19  Hermon,  Lisbon,  Louisville,  Madrid,  Norfolk,  Pierrepont,   Potsdam,
    20  Russell,  Stockholm, and Waddington and the Villages of Canton, Norwood,
    21  and Potsdam or such portions thereof  as  shall  be  determined  by  the
    22  directors, but the service area shall exclude the portions of said muni-
    23  cipalities in Franklin and St.  Lawrence counties which are served as of
    24  the  effective date of this title by another existing non-profit munici-

    25  pal electric utility. The  service  area  of  the  North  Country  power
    26  authority  shall  include such other territories, as shall be determined
    27  by the directors, wholly within Franklin or St.   Lawrence  county,  and
    28  adjacent to one or more of the above-referenced municipalities, in which
    29  rate payers rely on uninterrupted electric service from power facilities
    30  of  the  authority  located  within  said  municipalities.  A map of the
    31  service area shall be filed in the  offices  of  the  county  clerks  of
    32  Franklin and St. Lawrence counties.
    33    2.  The  service  area  of  the  North  Country power authority may be
    34  extended at any time to include additional territory within Franklin  or

    35  St.  Lawrence counties by the directors in accordance with the following
    36  procedure, provided however, the procedure does not  conflict  with  any
    37  rule  or  regulation  of the public service commission or any other law.
    38  Whenever the directors determine that the territory included within  the
    39  service  area should be extended, consistent with the provisions of this
    40  title, the directors shall adopt a resolution proposing  the  additional
    41  territory,  wholly  within  Franklin  or  St.  Lawrence  county,  to  be
    42  included, which may be all the territory within one or more named  muni-
    43  cipalities  or,  by  adequate description, a portion of any such munici-
    44  pality or municipalities. The directors shall fix the dates,  hours  and

    45  places for three public hearings before such directors upon the question
    46  of  such extension and cause notice thereof and of the additional terri-
    47  tory to be included within the service area to be published in two news-
    48  papers of general circulation in the county not  less  than  twenty  nor
    49  more  than  thirty  days  before such date. At least one of such hearing
    50  shall be held within the bounds of the proposed additional territory. At
    51  such time the directors shall hear all persons, taxpayers  or  officials
    52  who  may  wish  to  be  heard and shall finally determine the additional
    53  territory, if any, to be included in such extension. Such  determination
    54  shall  be  made  by  resolution of the directors adopted by a two-thirds

    55  vote of all directors then in office. A map  of  the  service  area,  as
        S. 2813--C                          6
 
     1  extended,  shall  thereupon be filed in the offices of the county clerks
     2  of Franklin and St. Lawrence counties.
     3    §  1021-d. Powers and duties of the authority. The powers conferred by
     4  this title shall be exercised by the directors, subject to the terms  of
     5  this  title. In the exercise of those powers, either directly or through
     6  its officers and employees, the directors may do the  following  things,
     7  among  others,  and  the  following  list  of powers shall not be deemed
     8  complete or exclusive, or to deny the existence of other powers, whether

     9  similar or different, so long  as  they  are  reasonably  necessary  for
    10  accomplishing the purposes declared and indicated in this title:
    11    1.  To  make  and  alter by-laws for the regulation of its affairs and
    12  conduct of its activities, to schedule annual, regular and special meet-
    13  ings of the directors, as the conduct of the business of  the  authority
    14  may warrant, and to adopt and amend an official seal;
    15    2.  To  develop,  acquire,  construct,  reconstruct,  rehabilitate and
    16  improve facilities  for  the  distribution  of  electric  power  or  any
    17  connected service;
    18    3.  To  determine  the  location,  type,  size,  construction,  lease,
    19  purchase, ownership, acquisition, use and operation of any facilities or

    20  other structure or property, within or without the service area;
    21    4. To investigate, implement and  integrate,  to  the  fullest  extent
    22  practicable  and  economically  feasible, such resource conservation and
    23  energy efficiency measures and equipment intended to reduce power demand
    24  and usage, utilize green technologies, alternative and renewable  fuels,
    25  net  metering  and demand response programs, all as integral elements in
    26  its investments in new equipment for distribution of power, and  in  its
    27  marketing and sale of electricity to consumers;
    28    5.  To  acquire on behalf of and in the name of the authority, whether
    29  by agreement with and purchase from the owner or  owners,  or  by  arbi-

    30  tration,  or  within the service area by eminent domain, pursuant to the
    31  procedures set forth in the eminent domain procedure law, or  by  lease,
    32  the whole or any part of any existing facilities or of any other proper-
    33  ty  to be used in connection with power distribution by the authority as
    34  set out in this title; provided, however, that the authority  shall  not
    35  acquire  real  property  of a municipality or a political subdivision of
    36  the state  unless  such  municipality  or  political  subdivision  shall
    37  consent  thereto;  and  provided  further  that  the authority shall not
    38  acquire by the exercise of eminent domain any transmission or generation
    39  facilities; and provided further that the authority shall not acquire by

    40  the exercise of eminent domain any facilities for distribution operating
    41  at a voltage in excess of twenty-two thousand  volts  from  any  person,
    42  corporation  or  association, public or private, engaged in the business
    43  of distribution and sale of electricity to ultimate customers unless the
    44  authority is unable to acquire by contract with the owners or  operators
    45  thereof,  the  right to use such facilities on just, reasonable and non-
    46  discriminatory terms. In the exercise of the power of eminent domain, as
    47  provided in this subdivision,  the  property  being  acquired  shall  be
    48  deemed, when so determined by the authority, to be for a public use;
    49    6.  To distribute electric power and any connected services within the

    50  service area, to fix rates and charges for the furnishing  or  rendition
    51  of  electric power or of any connected service, and to collect revenues.
    52  Provided however, that prior to the first sale of electric power or  any
    53  connected  service,  the authority shall promulgate regulations granting
    54  to customers the protections afforded  by  article  two  of  the  public
    55  service  law and section one hundred thirty-one-s of the social services
    56  law;
        S. 2813--C                          7
 
     1    7. To maintain, operate and manage, and contract for the  maintenance,
     2  operation and management of properties of the authority;
     3    8.  To apply to the appropriate agencies and officials of the federal,

     4  state and local governments for such licenses, permits or approvals  for
     5  its  plans  and projects as it may deem necessary or advisable, and upon
     6  such terms and conditions as it may deem appropriate to accept,  in  its
     7  discretion, such licenses, permits or approvals as may be tendered to it
     8  by such agencies and officials;
     9    9.  To enter upon such lands, waters or premises as in the judgment of
    10  the authority shall be necessary for  the  purpose  of  making  surveys,
    11  soundings, borings and examinations to accomplish any purpose authorized
    12  by this title, the authority being liable only for actual damages done;
    13    10. To enter into cooperative agreements with other authorities, muni-

    14  cipalities,  utility  companies, individuals, firms or corporations, and
    15  the dominion of Canada and its political subdivisions, for the intercon-
    16  nection of facilities and the exchange or interchange of electric  power
    17  or connected services, upon such terms and conditions as shall be deter-
    18  mined to be reasonable;
    19    11.  To  execute contracts, borrow money, issue bonds, notes and other
    20  obligations as provided in section one  thousand  twenty-one-i  of  this
    21  title,  and  sell  the same in such amounts and at such prices, interest
    22  rates and other financial terms as may be determined by the directors;
    23    12. To enter into agreements to purchase power from the power authori-
    24  ty of the state of New York, the state, any state  agency,  any  munici-

    25  pality,  any  private entity or any other available source at such price
    26  or prices as may be negotiated, including the power to  enter  into  any
    27  agreement or any negotiation for the purchase of power from the dominion
    28  of  Canada,  or  any  political subdivision, public authority or private
    29  corporation therein;
    30    13. To make any plans, studies or investigations  which  it  may  deem
    31  necessary, convenient or desirable to enable it effectually to carry out
    32  the provisions of this title;
    33    14.  To do whatever may be necessary to give effect to the purposes of
    34  this title, and in general to have and exercise all other powers  neces-
    35  sary or incidental to the purposes of this title.

    36    §  1021-e.  Deposit  and investment of moneys of the authority. 1. All
    37  moneys of the authority, from whatever source derived, except as  other-
    38  wise  authorized or provided in this title, shall upon receipt be depos-
    39  ited forthwith in a bank or banks designated by  the  directors,  to  be
    40  selected  in  accordance  with such standards as the directors shall set
    41  forth in the by-laws or investment guidelines of  the  authority,  which
    42  standards shall take into account the creditworthiness and capital posi-
    43  tion of the depositary bank or banks. The moneys in such accounts may be
    44  invested in obligations of the state or the United States, or guaranteed
    45  by  either  in  accordance  with  practices that the directors shall set

    46  forth in the by-laws or investment  guidelines  of  the  authority.  The
    47  moneys  in  such accounts shall be withdrawn on the order of such person
    48  or persons as the directors  shall  authorize  in  the  by-laws  of  the
    49  authority and shall be applied to the use of the authority as the direc-
    50  tors  shall  authorize  in the by-laws of the authority. All deposits of
    51  such moneys shall be secured  in  accordance  with  section  twenty-nine
    52  hundred  twenty-five  of  this  chapter.  The  state comptroller and his
    53  legally authorized representatives are  authorized  and  empowered  from
    54  time to time to examine the accounts and books of the authority, includ-
    55  ing  its  receipts,  disbursements,  contracts,  leases,  sinking funds,

    56  investments and any other records and papers relating to  its  financial
        S. 2813--C                          8
 
     1  standing;  the authority shall not be required to pay a fee for any such
     2  examination.
     3    2.  The  authority shall have power to contract with holders of any of
     4  its bonds or notes or other obligations, or any trustee therefor, as  to
     5  the  custody, collection, securing, investment and payment of any moneys
     6  of the authority and of any moneys held in trust or  otherwise  for  the
     7  payment  of  bonds  or  notes or other obligations, and to carry out any
     8  such contract. Moneys held in trust or  otherwise  for  the  payment  of
     9  bonds  or  notes  or  other obligations or in any way to secure bonds or

    10  notes or obligations and deposits of such moneys  shall  be  secured  in
    11  full  in  direct  obligations  of  the federal government the payment of
    12  which is guaranteed by the United States of  America.  Such  investments
    13  shall  be  held  on deposit only in banks having a minimum credit rating
    14  and a minimum accumulated capital, as the directors shall specify in the
    15  by-laws or investment guidelines of the authority.
    16    3. Subject to agreements with noteholders and bondholders or any trus-
    17  tee therefor, the authority shall prescribe a uniform system of accounts
    18  in accordance with generally accepted accounting principles.
    19    4. The directors shall adopt investment guidelines  and  standards  to

    20  implement the foregoing provisions of this section, which guidelines and
    21  standards  shall be reviewed annually by the directors and shall be made
    22  available to state and municipal officials and to the public.
    23    § 1021-f. Conflicts of interest.  Eligibility  for  appointment  as  a
    24  director,  officer  or employee of the authority shall be subject to the
    25  provisions of section twenty-eight hundred twenty-five of this  chapter.
    26  In addition to the requirements of such section:
    27    1. If any director, officer or employee of the authority shall have an
    28  interest,  either  direct  or  indirect,  in  any  contract to which the
    29  authority is or is to be a party, such interest shall  be  disclosed  to

    30  the  authority  in  writing and shall be set forth in the minutes of the
    31  authority. The director, officer or employee having such interest  shall
    32  not  participate  in  any  action  by the authority with respect to such
    33  contract.
    34    2. No director, officer or employee of the authority shall  be  deemed
    35  to  have  such  an  interest  solely  by  reason of the ownership of two
    36  percent or less of the securities of a corporation which is or is to  be
    37  a  party  to a contract with the authority, including without limitation
    38  the holding company of any banking institution in which the funds of the
    39  authority are, or are to be deposited, or which is or is to be acting as
    40  trustee or paying agent under any bond or note resolution, trust  inden-

    41  ture or similar instrument to which the authority is a party.
    42    3.  Nothing  in this section shall be deemed or construed to limit the
    43  right of any director, officer or employee of the authority  to  acquire
    44  an interest in the securities of the authority.
    45    § 1021-g. Sale of surplus power. Whenever any electric power which the
    46  authority  may  acquire  creates  a  surplus over the amount of electric
    47  power required by the residents of the service area, the  authority  may
    48  sell  such  surplus in territory outside the service area to persons, or
    49  public or private corporations. In acquiring any  facility  or  property
    50  which  also  serves  any  municipality  or territory outside the service

    51  area, the authority, if it deems it advantageous and  economical  so  to
    52  do,  may, with the consent of the directors, serve any such municipality
    53  or territory or sell electric power to persons,  or  public  or  private
    54  corporations in such territory or to such municipality.
    55    §  1021-h.  Audit and annual reports. 1. The accounts of the authority
    56  shall be subject to the supervision of the  comptroller  and  an  annual
        S. 2813--C                          9
 
     1  audit  shall  be performed by an independent certified public accountant
     2  selected by the directors and shall be made  available  to  the  munici-
     3  palities served by the NCPA and to the public.
     4    2. The authority shall submit a detailed annual report pursuant to and

     5  as specified in section twenty-eight hundred of this chapter, and a copy
     6  of such report shall be filed with the county executives of the counties
     7  of Franklin and St. Lawrence, and with the mayors and supervisors of the
     8  municipalities  within  the  service area and shall be made available to
     9  the municipalities served by the NCPA and to the public. Nothing in this
    10  section shall be deemed to exempt the authority from any rule  or  regu-
    11  lation, including public authorities law.
    12    §  1021-i. Bonds, notes and other obligations of the authority. 1. The
    13  authority shall have power and is hereby authorized from time to time to
    14  issue its bonds, notes or other obligations, in an aggregate amount  not

    15  to  exceed  one  hundred twenty-five million dollars, for the purpose of
    16  financing any capital project authorized by this  title,  including  but
    17  not  limited  to,  the  acquisition  of any real or personal property or
    18  facilities deemed necessary by the authority,  development  and  profes-
    19  sional  expenses,  and funding any capital or other reserve funds estab-
    20  lished in connection with the authority's operations  or  issuances,  in
    21  such  principal  amount  as  the  directors shall determine necessary to
    22  perform its corporate duties and further its purposes as  authorized  in
    23  this title. The maximum maturity of any such bond shall not exceed thir-
    24  ty  years  from  its  date of issuance. The maximum maturity of any such

    25  note or other obligation shall not exceed five years from  its  date  of
    26  issuance.
    27    2. Except as may be otherwise expressly provided by the authority, the
    28  issuance  of  bonds,  notes or other obligations, shall be general obli-
    29  gations of the authority payable out of any moneys or  revenues  of  the
    30  authority, subject only to any agreements with the holders of particular
    31  bonds,  notes  or  other  obligations  pledging any particular moneys or
    32  revenues.
    33    3. The authority shall have power from time to time, whenever it deems
    34  refunding expedient, to refund any bonds, notes or other obligations  by
    35  the issuance of new bonds, notes or other obligations, up to one hundred

    36  twenty-five  million  dollars in the aggregate, whether the bonds, notes
    37  or other obligations to be refunded have or have not  matured,  and  may
    38  issue bonds, notes or other obligations partly to refund bonds, notes or
    39  other  obligations  then  outstanding  and  partly for any other purpose
    40  described in this section. Refunding bonds, notes or  other  obligations
    41  may  be  exchanged  for  the  bonds,  notes  or  other obligations to be
    42  refunded, with such cash adjustments as may be agreed, or  may  be  sold
    43  with  the proceeds applied to the purchase or payment of the bonds to be
    44  refunded.
    45    4. Bonds may be issued either in a series with multiple discrete matu-
    46  rity dates or as term bonds with a  single  maturity  date.  The  bonds,

    47  notes  or  other  obligations  shall  be authorized by resolution of the
    48  directors and shall bear such date or dates,  mature  at  such  time  or
    49  times, bear interest at such rate or rates, payable annually or semi-an-
    50  nually,  be in such denominations, be in such form, carry such registra-
    51  tion privileges, be executed in such manner, be payable in lawful  money
    52  of  the United States of America at such place or places, and be subject
    53  to such terms of redemption,  as  such  resolution  or  resolutions  may
    54  provide.  In  the  event that term bonds, notes or other obligations are
    55  issued, the resolution authorizing the same may make such provisions for
        S. 2813--C                         10
 

     1  the establishment and management  of  adequate  sinking  funds  for  the
     2  payment thereof, as the authority may deem necessary.
     3    5.  The bonds, notes or other obligations of the authority may be sold
     4  at public or private sale for such price  or  prices  as  the  authority
     5  shall  determine.  For  a  private sale of its securities, the authority
     6  shall obtain the written approval of the terms of  such  sale  from  the
     7  comptroller  if  such  sale is to a party other than the comptroller, or
     8  from the director of the budget where such sale is to  the  comptroller,
     9  in either case prior to closing the issuance transaction.
    10    6.  Any  resolution  authorizing any issuance of bonds, notes or other

    11  obligations may contain  provisions,  which  shall  be  a  part  of  the
    12  contract between the authority and the holders of the issued securities,
    13  as to:
    14    (a)  pledging  all or any part of the revenues of the authority or its
    15  projects or any revenue producing contract  or  contracts  made  by  the
    16  authority  with  any individual, partnership, limited liability company,
    17  corporation or association to secure the payment of the bonds, notes  or
    18  other obligations, subject to such agreements with holders of securities
    19  of the authority;
    20    (b)  pledging,  assigning  or  creating  a  lien on all or any part of
    21  assets of the authority, including mortgages  and  obligations  security

    22  mortgages,  to  secure  the payment of the bonds, subject to such agree-
    23  ments with holders of securities of the authority;
    24    (c) the setting aside of reserves or sinking funds, and the regulation
    25  and disposition thereof;
    26    (d) establishment of special funds for deposit of moneys received from
    27  the proceeds of the issuance of securities as the directors shall deter-
    28  mine, consistent with the authorizing resolution and the  provisions  of
    29  this title;
    30    (e)  limitations  on  the purpose to which the proceeds of sale of any
    31  issuance of bonds, notes or other obligations then or thereafter  to  be
    32  issued  may  be applied and pledging such proceeds to secure the payment
    33  of the bonds, notes or other obligations;

    34    (f) limitations of the issuance of additional bonds,  notes  or  other
    35  obligations; the terms upon which additional bonds, notes or other obli-
    36  gations  may  be  issued  and  secured; and the refunding of outstanding
    37  bonds, notes or other obligations;
    38    (g) the procedure, if any, by which the terms  of  any  contract  with
    39  bondholders may be amended or abrogated, the amount of bonds the holders
    40  of  which must consent thereto, and the manner in which such consent may
    41  be given;
    42    (h) providing for the appointment and powers of a trustee for  holders
    43  of  securities, and the rights, powers and duties of such trustee as the
    44  directors may determine;
    45    (i) limitations on the amount of moneys derived from a project  to  be

    46  expended for operating, administrative or other expenses of the authori-
    47  ty;
    48    (j)  defining  the  acts  or omissions to act which shall constitute a
    49  default in the duties of the authority to holders of its obligations and
    50  providing the rights and remedies of such holders  in  the  event  of  a
    51  default  provided,  however,  that such rights and remedies shall not be
    52  inconsistent with the laws of the state and the other provisions of this
    53  article; and provided, further, however, that nothing contained in  this
    54  article  shall  be  deemed  to restrict the right of the state or of any
    55  municipality to amend, modify or otherwise alter statutes,  local  laws,
    56  ordinances,  resolutions  or agreements imposing or relating to taxes or

        S. 2813--C                         11
 
     1  fees or appropriations relating thereto; and there shall not be included
     2  in any resolution or contract or  agreement  with  the  holders  of  the
     3  bonds,  notes  or  other  obligations  authorized  by  this  article any
     4  provision  which  provides that a default shall occur as a result of the
     5  state or of a municipality exercising its  right  to  amend,  modify  or
     6  otherwise  alter laws, ordinances, resolutions or agreements imposing or
     7  relating to taxes or fees or appropriations relating thereto; and
     8    (k) any other provisions not inconsistent  with  those  enumerated  in
     9  this  subdivision  and necessary to effect its issuances of bonds, notes

    10  or other obligations and the rights of the holders of its securities, or
    11  otherwise in furtherance of its corporate purposes.
    12    7. Notwithstanding any other provision of this title, any such  resol-
    13  ution  or  resolutions shall contain a covenant by the authority that it
    14  will at all times maintain rates, fees or charges sufficient to pay, and
    15  that any contracts entered  into  by  the  authority  for  the  sale  or
    16  distribution of power shall contain rates, fees or charges sufficient to
    17  pay the costs of operation and maintenance of the project, the principal
    18  of and interest on any obligations issued pursuant to such resolution as
    19  the  same  severally  become  due  and payable, and to maintain any debt

    20  service coverage ratios and any reserves required by the terms  of  such
    21  resolution or resolutions. Provided however, that the total rates, fees,
    22  and  charges  shall not exceed the prevailing electric rate in the North
    23  Country. The prevailing electric rate in the North  Country  shall  mean
    24  the  average  of the total rates, fees, and charges paid by customers of
    25  National Grid and New York State Electric and Gas, or any successors, in
    26  St.  Lawrence, Franklin, and Jefferson  counties.  Compliance  with  the
    27  prevailing electric rates in the North Country shall be left to the sole
    28  determination of the public service commission.
    29    8. It is the intent of this title that any pledge of revenues or other

    30  moneys  or  of  a  revenue  producing  contract or contracts made by the
    31  authority shall be valid and binding from the time when  the  pledge  is
    32  made;  that  the revenues or other moneys or proceeds of any contract or
    33  contracts so pledged and thereafter  received  by  the  authority  shall
    34  immediately  be  subject to the lien of such pledge without any physical
    35  delivery thereof or further act; and that the lien of  any  such  pledge
    36  shall  be  valid and binding as against all parties having claims of any
    37  kind in tort, contract or otherwise against the  authority  irrespective
    38  of  whether such parties have notice thereof. Neither the resolution nor
    39  any other instrument by which a pledge is created need be recorded.

    40    9. Neither the directors of the authority nor any person executing the
    41  bonds, notes or other obligations shall  be  liable  personally  on  the
    42  bonds,  notes or other obligations or be subject to any personal liabil-
    43  ity or accountability by reason of the issuance thereof.
    44    10. The authority shall have the power  out  of  any  funds  available
    45  therefor  to  purchase  bonds, notes or other obligations. The authority
    46  may hold, pledge, cancel or resell such  bonds,  notes  or  other  obli-
    47  gations, subject to and in accordance with agreements with bondholders.
    48    11.  Any bonds, notes or other obligations issued by the authority are
    49  hereby made securities in which all public officers and bodies  of  this

    50  state  and  all municipalities and municipal subdivisions, all insurance
    51  companies and associations and other persons carrying  on  an  insurance
    52  business, all banks, bankers, trust companies, savings banks and savings
    53  associations, including savings and loan associations, building and loan
    54  associations, investment companies and other persons carrying on a bank-
    55  ing  business,  and  all  other persons whatsoever who are authorized to
    56  invest in bonds, notes or other obligations of the state,  may  properly
        S. 2813--C                         12
 
     1  and legally invest funds including capital in their control or belonging
     2  to  them;  subject to the provisions of any other general or special law
     3  to the contrary.

     4    12. The authority is authorized to obtain from any department or agen-
     5  cy  of  the United States of America or the state or any nongovernmental
     6  insurer or financial institution any insurance, guaranty or other credit
     7  support device, to the extent available, as to, or for  the  payment  or
     8  repayment of interest or principal, or both, or any part thereof, on any
     9  bonds,  notes  or other obligations issued by the authority and to enter
    10  into any agreement or contract with respect to  any  such  insurance  or
    11  guaranty,  except to the extent that the same would in any way impair or
    12  interfere with the ability of the authority to perform and  fulfill  the
    13  terms of any agreement made with the holders of outstanding bonds, notes

    14  or other obligations of the authority.
    15    13.  In  addition  to  the  powers  conferred in this section upon the
    16  authority to secure its bonds, notes or other obligations, the authority
    17  shall have the power in connection with the issuance of bonds, notes  or
    18  other  obligations  to  enter  into such agreements as the authority may
    19  deem necessary, convenient or desirable concerning the use  or  disposi-
    20  tion  of  its revenues or other moneys or property, and for the acquisi-
    21  tion, alteration or disposition of  its  property,  real  and  personal,
    22  including  the  mortgaging  of any of its properties and the entrusting,
    23  pledging or creation of any other security interest in any  such  reven-

    24  ues, moneys or properties and the doing of any act, including refraining
    25  from  doing  any  act, which the authority would have the right to do in
    26  the absence of such agreements. The authority shall have  the  power  to
    27  enter  into  amendments of any such agreements within the powers granted
    28  to the authority by this title  and  to  perform  such  agreements.  The
    29  provisions  of  any  such  agreements may be made a part of the contract
    30  with the holders of bonds, notes or other obligations of the authority.
    31    14. All bonds, notes and other obligations  issued  by  the  authority
    32  under  the  provisions of this title are hereby declared to have all the
    33  qualities and incidents of negotiable instruments under  the  applicable
    34  laws of the state.

    35    15. Nothing in this subdivision shall be deemed to allow the authority
    36  to  exceed  its  one  hundred  twenty-five million dollar aggregate debt
    37  limit.
    38    § 1021-j. State and municipalities not liable on  bonds  or  notes  or
    39  other  obligations.  The securities of the authority shall not be a debt
    40  of the state or of any municipality, and neither the state nor any muni-
    41  cipality shall be liable thereon. The authority shall not have the power
    42  to pledge or restrict the credit, the revenues or the  taxing  power  of
    43  the  state  or of any municipality, and neither the credit, the revenues
    44  nor the taxing power of the state or of any  municipality  shall  be  or
    45  shall  be  deemed  to be pledged to the payment of any securities of the

    46  authority. Each evidence of indebtedness of the authority, including the
    47  securities of the authority, shall contain a clear and  explicit  state-
    48  ment  of  the provisions of this section.  Nothing in this article shall
    49  be deemed to obligate the state or any municipality to make any payments
    50  or impose any taxes to satisfy  the  debt  service  obligations  of  the
    51  authority.
    52    §  1021-k. Agreement of the state. The state does hereby pledge to and
    53  agree with the holders of any bonds, notes or other  obligations  issued
    54  by  the  authority  under  this  title, that the state will not limit or
    55  alter the rights hereby vested in the authority to establish and collect
    56  the revenues and other charges referred to in this title and to  fulfill

        S. 2813--C                         13
 
     1  the  terms of any agreements made with or for the benefit of the holders
     2  of the securities, or in any way impair the rights and remedies  of  the
     3  bondholders  until  such  securities  are  fully met and discharged. The
     4  authority  is  authorized  to  include  this  pledge of the state in all
     5  agreements by the authority with the holders of its securities.  Nothing
     6  contained in this article shall be deemed to restrict any right  of  the
     7  state  or municipality to amend, modify, repeal or otherwise alter stat-
     8  utes imposing or relating to taxes or fees, or  appropriations  relating
     9  thereto. The authority shall not include within any resolution, contract

    10  or  agreement  with  holders  of  the  bonds, notes or other obligations
    11  issued under this article any provision which provides  that  a  default
    12  occurs  as  a  result  of  the state or of a municipality exercising its
    13  right to amend, modify, or repeal or otherwise alter any statute  impos-
    14  ing or relating to taxes, fees, or appropriations relating thereto.
    15    §  1021-l.  Exemption  of the authority from taxation. 1. It is hereby
    16  found and declared that the operation of the authority is primarily  for
    17  the  benefit of the people of the participating municipalities, counties
    18  and the state, for the improvement of their health, welfare and prosper-
    19  ity, and is a public purpose, and the authority  shall  be  regarded  as

    20  performing  an  essential  governmental  function  in  carrying  out the
    21  provisions of this title.
    22    2. The authority shall be required to pay  no  taxes  nor  assessments
    23  upon any of the property acquired or controlled by it or upon its activ-
    24  ities  in  the  operation and maintenance thereof or upon income derived
    25  therefrom, provided that nothing herein shall prevent the authority from
    26  entering into agreements to make payments in lieu of taxes.
    27    3. The authority shall make payments  in  lieu  of  taxes  to  munici-
    28  palities  and  school districts equal to the taxes and assessments which
    29  would have been received from year to year by such jurisdiction.
    30    4. The authority shall also make payments in lieu of taxes  for  those

    31  taxes which would otherwise be imposed upon a utility corporation pursu-
    32  ant  to:  (a)  section  one  hundred eighty-six-a and former section one
    33  hundred eighty-six of the tax law as such sections  were  in  effect  on
    34  December  thirty-first,  nineteen  hundred  ninety-nine;  (b)  any taxes
    35  imposed by a city within the authority's service area  pursuant  to  the
    36  authorization  granted  by section twenty-b of the general city law; and
    37  (c) any taxes imposed by a village within the authority's  service  area
    38  pursuant to authorization granted by section 5-530 of the village law.
    39    5.  Notwithstanding  the exemption in subdivision two of this section,
    40  the authority shall also be subject to the assessments imposed  pursuant

    41  to section eighteen-a of the public service law.
    42    6.  The  securities  issued by the authority, and the income therefrom
    43  shall, at all times, be free from taxation, except for estate  and  gift
    44  taxes.
    45    7.  Nothing in this article shall relieve the authority from its obli-
    46  gations to register for sales tax purposes, collect state or local sales
    47  and compensating use taxes imposed by or pursuant to  the  authority  of
    48  articles  twenty-eight  and  twenty-nine  of  the tax law, and otherwise
    49  comply with those articles on its sale of property or services.
    50    § 1021-m. Actions against  the  authority.  1.  Any  action,  suit  or
    51  proceeding  to  which the authority may be a party in which any question

    52  arises as to the validity of this title or the  valuation  of  stock  or
    53  assets acquired by the authority by the exercise of the power of eminent
    54  domain  shall  be preferred over all other civil causes in all courts of
    55  the state, except election matters, and shall be heard and determined in
    56  preference to all other civil business pending therein, except  election
        S. 2813--C                         14
 
     1  matters,  irrespective of position on the calendar.  The same preference
     2  shall be granted upon application of counsel to  the  authority  in  any
     3  action or proceeding questioning the validity of this title or the valu-
     4  ation  of  stock  or assets acquired by the authority by the exercise of

     5  the power of eminent domain in which such  counsel  may  be  allowed  to
     6  intervene.  The  venue of any such action or proceeding shall be laid in
     7  the supreme court pursuant to article five of the civil practice law and
     8  rules.
     9    2. In the event any party shall appeal an award  of  compensation  for
    10  the  taking by the authority of stock or assets, such party shall post a
    11  bond in such amount, if any, as the supreme court shall deem appropriate
    12  to adequately protect the interests of the other  party  under  all  the
    13  circumstances.
    14    3.  An action against the authority founded on tort shall be commenced
    15  in compliance with all the requirements of section fifty-e of the gener-

    16  al municipal law, except that an action against the authority for wrong-
    17  ful death shall be commenced in accordance with the provisions of  title
    18  eleven of article nine of this chapter.
    19    §  1021-n. Equal employment opportunity. All contracts entered into by
    20  the authority pursuant to this title of whatever nature  and  all  docu-
    21  ments soliciting bids or proposals therefor shall contain or make refer-
    22  ence to the following provision:
    23    The  contractor shall not discriminate against employees or applicants
    24  for employment because of race, creed, color, national origin, sex, age,
    25  disability or marital status, and will undertake  or  continue  existing
    26  programs of affirmative action to ensure that minority group persons and

    27  women  are  afforded  equal  opportunity  without  discrimination.  Such
    28  programs shall include, but not be limited to, recruitment,  employment,
    29  job assignment, promotion, upgrading, demotion, transfer, layoff, termi-
    30  nation,  rates  of pay or other forms of compensation, and selection for
    31  training and retraining, including apprenticeship and on-the-job  train-
    32  ing.
    33    §  1021-o. Limitation of liability; indemnification. 1. The directors,
    34  officers and employees of the authority, while acting within  the  scope
    35  of  their  authority  as  directors, officers or employees, shall not be
    36  subject to any personal or civil liability resulting from the  exercise,
    37  carrying  out  or  advocacy  of any of the authority's purposes or power

    38  unless the conduct of the directors, officers or  employees  is  finally
    39  determined  by  a  court  of competent jurisdiction to constitute inten-
    40  tional wrongdoing or recklessness.
    41    2. The provisions of section eighteen of the public officers law shall
    42  apply  to  directors,  officers  and  employees  of  the  authority   in
    43  connection   with  any  and  all  claims,  demands,  suits,  actions  or
    44  proceedings which may be made or brought against any of them arising out
    45  of any determinations made or actions taken or omitted to  be  taken  in
    46  compliance with any actions taken pursuant to the powers of this title.
    47    3.  As  used  in  this  section,  the  terms "director", "officer" and

    48  "employee" shall include a former director, officer or employee and  his
    49  or her estate or judicially appointed personal representative.
    50    4.  Nothing  in  this section shall limit the obligations of a "direc-
    51  tor," "officer," or "employee" of the authority or of  a  subsidiary  of
    52  the  authority  as  a  "person required to collect tax," as such term is
    53  defined in article twenty-eight of the tax law, if such director,  offi-
    54  cer  or  employee  is,  or was, under a duty to act for the authority or
    55  subsidiary, or both, as the case may be, in complying with any  require-
        S. 2813--C                         15
 
     1  ment of article twenty-eight or related provision of article twenty-nine
     2  of the tax law.

     3    §  1021-p. Website. The authority shall make accessible to the public,
     4  via its official or shared internet website, documentation pertaining to
     5  its mission, current activities, most recent annual  financial  reports,
     6  current  year budget and its most recent independent audit report unless
     7  such information is covered by subdivision two of  section  eighty-seven
     8  of the public officers law.
     9    §  1021-q.  Prevailing  wage.  Whenever  the authority enters into any
    10  contract, subcontract, lease, grant, bond, covenant or  other  agreement
    11  for  or in connection with any construction, demolition, reconstruction,
    12  excavation, rehabilitation, repair, renovation, alteration, or  improve-

    13  ment  project, such project shall be deemed to be a public works project
    14  for the purposes of article eight of the  labor  law,  and  all  of  the
    15  provisions  of article eight of the labor law shall be applicable to all
    16  the work involved in the construction, demolition, reconstruction, exca-
    17  vation, rehabilitation, repair, renovation, alteration,  or  improvement
    18  of  such  project.  Funds,  financial  assistance, or any other benefits
    19  provided pursuant to this article  shall  not  be  utilized  for  or  in
    20  connection  with  the  construction,  demolition,  reconstruction, exca-
    21  vation, rehabilitation, repair, renovation, alteration,  or  improvement
    22  of any project to which the provisions of article eight of the labor law
    23  are not applicable.

    24    §  1021-r.  Periodic  review by legislature. Beginning in the year two
    25  thousand fifteen, and not more than  every  ten  years  thereafter,  the
    26  legislature  of  the  state  of  New  York shall conduct a comprehensive
    27  review, of the structure, activities and operations of the NCPA, and the
    28  NCPA shall provide such records, reports and testimony as  the  legisla-
    29  ture may request to assist in the conduct of this review.
    30    §  1021-s.  Severability.  The provisions of this title are severable,
    31  and if any clause, sentence, paragraph, action or part of this title, or
    32  the application thereof to any person or circumstance, shall be adjudged
    33  by any court of competent jurisdiction to be invalid  or  unenforceable,

    34  such  judgment  shall  not affect, impair or invalidate the remainder of
    35  this title or the application of such provision to any other  person  or
    36  circumstance,  but  shall  be  confined  in its operation to the clause,
    37  sentence, paragraph, section or part thereof or person  or  circumstance
    38  directly  involved  in the controversy in which such judgment shall have
    39  been rendered.
    40    § 2. Subdivision 1 of section 51 of  the  public  authorities  law  is
    41  amended by adding a new paragraph n to read as follows:
    42    n. North Country Power Authority
    43    § 3. This act shall take effect immediately.