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A08887 Summary:

BILL NOA08887
 
SAME ASSAME AS S07273
 
SPONSORCarroll
 
COSPNSRMosley, Kim, Richardson, Dinowitz, Simon, Gottfried, Weprin, Dickens, Ortiz
 
MLTSPNSRHyndman, Lentol, Simotas
 
Add Art 5 Title 1-C 1022 - 1022-t, amd 51, Pub Auth L
 
Establishes the downstate New York power authority, and providing for its powers and duties.
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A08887 Text:



 
                STATE OF NEW YORK
        ________________________________________________________________________
 
                                          8887
 
                               2019-2020 Regular Sessions
 
                   IN ASSEMBLY
 
                                    December 18, 2019
                                       ___________
 
        Introduced  by M. of A. CARROLL -- read once and referred to the Commit-
          tee on Corporations, Authorities and Commissions
 
        AN ACT to amend the public authorities law, in relation to  establishing
          the  downstate  New York 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-C to read as follows:
     3                                  TITLE 1-C
     4                     DOWNSTATE NEW YORK POWER AUTHORITY
     5  Section 1022.   Short title.
     6          1022-a. Definitions.
     7          1022-b. Downstate New York power authority.
     8          1022-c. Downstate New York power authority service area;  exten-
     9                    sion of service area.
    10          1022-d. Powers and duties of the authority.
    11          1022-e. Acquisition  of  property, including the exercise of the
    12                    power of eminent domain.
    13          1022-f. Deposit and investment of moneys of the authority.
    14          1022-g. Conflicts of interest.
    15          1022-h. Sale of surplus power.
    16          1022-i. Audit and annual reports.
    17          1022-j. Bonds, notes and other obligations of the authority.
    18          1022-k. State and municipalities not liable on bonds or notes or
    19                    other obligations.
    20          1022-l. Agreement of the state.
    21          1022-m. Exemption of the authority from taxation.
    22          1022-n. Actions against the authority.
    23          1022-o. Equal employment opportunity.
    24          1022-p. Limitation of liability; indemnification.
 
         EXPLANATION--Matter in italics (underscored) is new; matter in brackets
                              [ ] is old law to be omitted.
                                                                   LBD14319-01-9

        A. 8887                             2
 
     1          1022-q. Website.
     2          1022-r. Prevailing wage.
     3          1022-s. Periodic review by legislature.
     4          1022-t. Severability.
     5    § 1022. Short title. This title shall be known and may be cited as the
     6  "downstate New York power authority act".
     7    §  1022-a. Definitions. As used or referred to in this title, unless a
     8  different meaning clearly appears from the context:
     9    1. "Acquire" means, with respect to any right, title or interest in or
    10  to any property, either the act of taking by the exercise of  the  power
    11  of eminent domain, or the acquisition by purchase or otherwise.
    12    2.  "Act" means the downstate New York power authority act, being this
    13  title.
    14    3. "Authority" means the downstate New  York  power  authority  estab-
    15  lished by section one thousand twenty-two-b of this title.
    16    4. "Commission" means the public service commission.
    17    5. "Comptroller" means the state comptroller.
    18    6.  "Downstate  service  area" or "service area" means the counties of
    19  Bronx, Kings, New York, Richmond, Queens,  Dutchess,  Putnam,  Sullivan,
    20  Orange, Rockland, Ulster, and Westchester.
    21    7.  "Downstate utility corporation" means any private gas corporation,
    22  electric corporation, or combined gas and electric corporation, as  such
    23  terms  are  defined in section two of the public service law, that has a
    24  portion of its service territory within the downstate service area. This
    25  shall not include the Long Island power authority,  the  public  benefit
    26  corporation  created  by  section  one  thousand  twenty-c of the public
    27  authorities law, as added by chapter five hundred seventeen of the  laws
    28  of  nineteen  eighty-six, or any municipality that provides gas or elec-
    29  tric service.
    30    8. "Federal government" means the United States  of  America  and  any
    31  agency  or instrumentality, corporate or otherwise, of the United States
    32  of America.
    33    9. "Final determination" or  "finally  determined"  means  a  judicial
    34  decision (a) by the highest court of competent jurisdiction, or (b) by a
    35  court  of competent jurisdiction from which no appeal has been taken and
    36  the time within which to appeal has expired.
    37    10. "Municipality" means any county, city,  town,  village,  municipal
    38  corporation,  school  district  or  other  political  subdivision of the
    39  state, including any agency, authority  or  public  corporation  of  the
    40  state  or  any  of the foregoing, or any combination thereof, other than
    41  the authority.
    42    11. "Property" means the power distribution system or systems  of  the
    43  authority,  whether  completed  facilities  or projects in construction,
    44  whether situated within or without the territorial limits of the service
    45  area, including the plants, works, structures, poles,  lines,  conduits,
    46  mains,  systems,  instrumentalities  or  parts thereof and appurtenances
    47  thereto, lands, franchises and interest in land, including  lands  under
    48  water and riparian rights, space rights and air rights, contract rights,
    49  substations,  and  distribution  facilities, or any other property inci-
    50  dental to and included in such system or part thereof, and any  improve-
    51  ments, extensions or betterments. The term "property" shall also include
    52  any  and  all  interests  in real property less than full title, such as
    53  easements, rights of way, uses, leases, licenses and all other  incorpo-
    54  real hereditaments and every estate, interest or right, legal or equita-
    55  ble,  including  terms  for years and liens thereon by way of judgments,

        A. 8887                             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    16. "Trustees' means the board of trustees of the authority.
    16    § 1022-b. Downstate New York power authority. 1. A  corporation  known
    17  as  the  downstate  New  York  power authority is hereby established and
    18  charged with the duties and having the powers provided  in  this  title.
    19  The  authority  shall be a state authority, a body corporate and politic
    20  constituting a public benefit corporation, a  political  subdivision  of
    21  the state, exercising governmental and public powers, perpetual in dura-
    22  tion, capable of suing and being sued and having a seal, and which shall
    23  have  the powers and duties enumerated in this title, together with such
    24  others as may be conferred upon it by law.
    25    2. Trustees. (a) The authority shall consist of a board of nine  trus-
    26  tees,  who  shall  be elected from districts established by the legisla-
    27  ture. Each elected trustee shall be a  resident  of  the  district  from
    28  which  he  or  she  is elected. No person who is an elected or appointed
    29  official of the state or any municipality or any agency or instrumental-
    30  ity thereof, shall be qualified to serve as  an  elected  trustee.  Each
    31  trustee  shall  hold office until his or her successor has been elected.
    32  In the event of a vacancy occurring in the office of a trustee by death,
    33  resignation or otherwise, a successor shall be chosen to hold office for
    34  the unexpired term in the manner prescribed by the election law.
    35    (b) Within one hundred eighty days, and each  tenth  year  thereafter,
    36  the  legislature shall establish nine districts, which shall be equal in
    37  population as determined by the last federal decennial census.
    38    (c) Such trustees shall be elected in elections conducted by the board
    39  of elections pursuant to applicable provisions of the election law.  The
    40  first  such  election shall be held on the first Tuesday in November two
    41  thousand twenty, and the trustees so elected shall take office on  Janu-
    42  ary  first,  two  thousand  twenty-one.  At such election three trustees
    43  shall be elected for a term of one year, three shall be  elected  for  a
    44  term  of  three  years,  and  three  shall be elected for a term of five
    45  years. Each such term shall end December thirty-first of the  last  year
    46  thereof.  No  later than July first, two thousand twenty and each subse-
    47  quent year in which reapportionment or readjustment  of  such  districts
    48  takes  place,  the state board of elections shall determine by lot which
    49  such trustees shall be elected for which terms.  Thereafter, three trus-
    50  tees shall be elected on the first Tuesday in November of each  year  to
    51  replace the trustees whose terms will expire at the end of the year, for
    52  terms  of  three years each except that all trustees shall be elected at
    53  the first election held after a reapportionment or readjustment of  such
    54  districts.  No  political party shall be entitled to nominate candidates
    55  for the office of trustee at any such election.

        A. 8887                             4
 
     1    3. The trustees shall serve without compensation but shall be entitled
     2  to reimbursement of their actual and necessary expenses incurred in  the
     3  performance  of their official duties, as may be authorized by the trus-
     4  tees, in each case upon  appropriate  documentation  by  the  submitting
     5  trustee.    No  trustee or any entity, the majority of which is owned or
     6  controlled by any trustee, shall  receive  any  additional  compensation
     7  from the authority or be employed by the authority in any other capacity
     8  by whatever means.
     9    4.  Five  trustees  shall  constitute  a quorum for the transaction of
    10  business, and the affirmative vote of five trustees at a  meeting  shall
    11  be  necessary to the validity of any resolution, order or determination.
    12  The trustees, in by-laws or by resolution, may allow for attendance at a
    13  meeting of the trustees by speaker phone or any other  electronic  means
    14  by which all meeting participants can hear one another.
    15    5.  The trustees shall appoint an executive committee of not less than
    16  three trustees and shall delegate such duties  and  responsibilities  of
    17  the trustees to the executive committee as it may determine from time to
    18  time,  except  that  the  trustees  shall  not delegate to the executive
    19  committee the power to authorize the issuance of securities.  The  trus-
    20  tees may appoint such additional committees with such duties and respon-
    21  sibilities as they may determine from time to time.
    22    6.  (a)  The trustees 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 trustees may require for
    27  the performance of their duties  and  shall  prescribe  the  duties  and
    28  compensation  of each such officer and employee. Such compensation shall
    29  be reasonable and commensurate to the duties of  the  position  of  such
    30  officer or employee.
    31    (b)  If  any employees are hired as a consequence of an acquisition of
    32  the assets of a downstate  utility  corporation,  they  shall  be  hired
    33  subject and be entitled to all applicable provisions of (i) any existing
    34  contract or contracts with labor unions and (ii) all existing pension or
    35  other  retirement  plans. Notwithstanding the provisions of any general,
    36  special or local law, the board may determine that such class of employ-
    37  ees of the authority may elect to become members of the New  York  state
    38  employees'  retirement  system  on  the basis of compensation payable to
    39  them by the authority.
    40    7. (a) The authority shall be subject in all respects to  the  general
    41  supervision  and  jurisdiction  of  the public service commission in the
    42  same manner as an electric corporation is subject to the jurisdiction of
    43  the public service commission under the public service law.
    44    (b) The authority shall not make any commitment, enter into any agree-
    45  ment nor incur any indebtedness unless prior approval has been  received
    46  from  the  New  York  state public authorities control board pursuant to
    47  article one-A of this chapter.
    48    (c) In addition to all of the powers of the public service commission,
    49  prior to acquiring any property and commencing operations, the authority
    50  shall secure an order from the commission authorizing  such  acquisition
    51  and  commencement.  The  commission  shall  have  the  power to deny the
    52  authority's application to acquire property and commence operations. The
    53  authority shall comply with any and all requests for documents,  materi-
    54  als,  and  testimony  that the commission may seek. The commission shall
    55  consider, including but not limited to,  the  following  factors  before
    56  issuing  an  order: ratepayer impacts; system reliability; environmental

        A. 8887                             5
 
     1  impacts, conservation of energy resources; preservation or  creation  of
     2  economic opportunities; power efficiency and availability; public health
     3  and  welfare;  and  any  other  factor  it deems relevant. The authority
     4  granted  pursuant to this paragraph shall terminate upon commencement of
     5  distribution of power.
     6    8. The authority and its  corporate  existence  shall  continue  until
     7  terminated by law, provided, however, that no such law shall take effect
     8  so  long  as  the  authority  shall  have securities outstanding, unless
     9  adequate provision has been made for the payment thereof.
    10    9. In the event that the authority does not commence delivering  elec-
    11  tric  power  within  ten  years of the effective date of this title, the
    12  authority shall cease to exist and the provisions of this title shall be
    13  of no further force and effect, subject to the terms of any bonds, notes
    14  or other debt obligations then outstanding.
    15    § 1022-c. Downstate New York power authority service  area;  extension
    16  of  service  area.  1.  The service area of the downstate New York power
    17  authority shall embrace the service territory of any  downstate  utility
    18  corporation located within the downstate service area.
    19    2.  The  service area of the downstate New York power authority may be
    20  extended at any time to include additional territory by the trustees  in
    21  accordance with the following procedure, provided however, the procedure
    22  does  not  conflict  with  any  rule or regulation of the public service
    23  commission or any other law. Whenever the trustees  determine  that  the
    24  territory  included within the service area should be extended, consist-
    25  ent with the provisions of this title, the trustees shall adopt a resol-
    26  ution proposing the additional territory. The  trustees  shall  fix  the
    27  dates,  hours  and places for three public hearings before such trustees
    28  upon the question of such extension and cause notice thereof and of  the
    29  additional  territory  to  be  included  within  the  service area to be
    30  published in two newspapers of general circulation  in  the  county  not
    31  less  than  twenty  nor more than thirty days before such date. At least
    32  one of such hearings shall be held within the  bounds  of  the  proposed
    33  additional territory.  At such time the trustees shall hear all persons,
    34  taxpayers or officials who may wish to be heard and shall finally deter-
    35  mine the additional territory, if any, to be included in such extension.
    36  Such  determination  shall be made by resolution of the trustees adopted
    37  by a two-thirds vote of all trustees  then  in  office.  A  map  of  the
    38  service area, as extended, shall thereupon be filed in the office of the
    39  county clerk of the affected counties.
    40    §  1022-d. Powers and duties of the authority. The powers conferred by
    41  this title shall be exercised by the trustees, subject to the  terms  of
    42  this  title. In the exercise of those powers, either directly or through
    43  its officers and employees, the trustees may do  the  following  things,
    44  among  others,  and  the  following  list  of powers shall not be deemed
    45  complete or exclusive, or to deny the existence of other powers, whether
    46  similar or different, so long  as  they  are  reasonably  necessary  for
    47  accomplishing the purposes declared and indicated in this title:
    48    1.  To  make  and  alter by-laws for the regulation of its affairs and
    49  conduct of its activities, to schedule annual, regular and special meet-
    50  ings of the trustees, as the conduct of the business  of  the  authority
    51  may warrant, and to adopt and amend an official seal;
    52    2.  To  develop,  acquire,  construct,  reconstruct,  rehabilitate and
    53  improve facilities  for  the  distribution  of  electric  power  or  any
    54  connected service;

        A. 8887                             6
 
     1    3.  To  determine  the  location,  type,  size,  construction,  lease,
     2  purchase, ownership, acquisition, use and operation of any facilities or
     3  other structure or property, within or without the service area;
     4    4.  To  investigate,  implement  and  integrate, to the fullest extent
     5  practicable and economically feasible, such  resource  conservation  and
     6  energy efficiency measures and equipment intended to reduce power demand
     7  and  usage, utilize green technologies, alternative and renewable fuels,
     8  net metering, crediting mechanisms for distributed energy resources  and
     9  demand response programs, all as integral elements in its investments in
    10  new  equipment  for distribution of power, and in its marketing and sale
    11  of electricity to consumers;
    12    5. To acquire on behalf of and in the name of the  authority,  whether
    13  by  agreement  with  and  purchase from the owner or owners, or by arbi-
    14  tration, or within the service area by eminent domain, pursuant  to  the
    15  procedures  set  forth in the eminent domain procedure law, or by lease,
    16  the whole or any part of any existing facilities or of any other proper-
    17  ty to be used in connection with power distribution by the authority  as
    18  set  out  in this title; provided, however, that the authority shall not
    19  acquire real property of a municipality or a  political  subdivision  of
    20  the  state  unless  such  municipality  or  political  subdivision shall
    21  consent thereto; and provided  further  that  the  authority  shall  not
    22  acquire by the exercise of eminent domain any transmission or generation
    23  facilities; and provided further that the authority shall not acquire by
    24  the exercise of eminent domain any facilities for distribution operating
    25  at  a  voltage  in  excess of twenty-two thousand volts from any person,
    26  corporation or association, public or private, engaged in  the  business
    27  of distribution and sale of electricity to ultimate customers unless the
    28  authority  is unable to acquire by contract with the owners or operators
    29  thereof, the right to use such facilities on just, reasonable  and  non-
    30  discriminatory terms. In the exercise of the power of eminent domain, as
    31  provided  in  this  subdivision,  the  property  being acquired shall be
    32  deemed, when so determined by the authority, to be for a public use;
    33    6. To distribute electric power and any connected services within  the
    34  service area, to fix progressive rates and charges for the furnishing or
    35  rendition  of electric power or of any connected service, and to collect
    36  revenues. Provided however, that prior to the  first  sale  of  electric
    37  power  or  any  connected  service, the authority shall promulgate regu-
    38  lations granting to customers the protections afforded by article two of
    39  the public service law and  section  one  hundred  thirty-one-s  of  the
    40  social services law;
    41    7.  To maintain, operate and manage, and contract for the maintenance,
    42  operation and management of properties of the authority;
    43    8. To apply to the appropriate agencies and officials of the  federal,
    44  state  and local governments for such licenses, permits or approvals for
    45  its plans and projects as it may deem necessary or advisable,  and  upon
    46  such  terms  and conditions as it may deem appropriate to accept, in its
    47  discretion, such licenses, permits or approvals as may be tendered to it
    48  by such agencies and officials;
    49    9. To enter upon such lands, waters or premises as in the judgment  of
    50  the  authority  shall  be  necessary  for the purpose of making surveys,
    51  soundings, borings and examinations to accomplish any purpose authorized
    52  by this title, the authority being liable only for actual damages done;
    53    10. To enter into cooperative agreements with other authorities, muni-
    54  cipalities, utility companies, individuals, firms or  corporations,  and
    55  the dominion of Canada and its political subdivisions, for the intercon-
    56  nection  of facilities and the exchange or interchange of electric power

        A. 8887                             7
 
     1  or connected services, upon such terms and conditions as shall be deter-
     2  mined to be reasonable;
     3    11.  To  execute contracts, borrow money, issue bonds, notes and other
     4  obligations as provided in section one  thousand  twenty-two-i  of  this
     5  title,  and  sell  the same in such amounts and at such prices, interest
     6  rates and other financial terms as may be determined by the trustees;
     7    12. To enter into agreements to purchase power from the power authori-
     8  ty of the state of New York, the state, any state  agency,  any  munici-
     9  pality,  any  private entity or any other available source at such price
    10  or prices as may be negotiated, including the power to  enter  into  any
    11  agreement or any negotiation for the purchase of power from the dominion
    12  of  Canada,  or  any  political subdivision, public authority or private
    13  corporation therein;
    14    13. To make any plans, studies or investigations  which  it  may  deem
    15  necessary, convenient or desirable to enable it effectually to carry out
    16  the provisions of this title; and
    17    14.  To do whatever may be necessary to give effect to the purposes of
    18  this title, and in general to have and exercise all other powers  neces-
    19  sary or incidental to the purposes of this title.
    20    § 1022-e. Acquisition of property, including the exercise of the power
    21  of  eminent domain. 1. The legislature hereby expressly finds and deter-
    22  mines:
    23    (a) The acquisition by the authority, through purchase or the exercise
    24  of the power of eminent domain, of either the securities or assets of  a
    25  downstate  utility corporation whichever is less expensive for the rate-
    26  payers, as the authority may determine will be just to the ratepayers in
    27  the service area, is the most appropriate  means  of  dealing  with  the
    28  emergency  involving the economy, health and safety of the residents and
    29  the industry and commerce in the service area, notwithstanding the  fact
    30  that  such  downstate  utility corporation presently may be devoted to a
    31  public use, since the public use of such property by  the  authority  is
    32  hereby  deemed  to be superior to the public use of such property by any
    33  other person, association, or corporation.
    34    (b) The authority, prior to exercising its power of eminent domain  to
    35  acquire  the  stock  or assets of a downstate utility corporation, shall
    36  enter into negotiations with such downstate utility corporation for  the
    37  purpose of acquiring such stock or assets upon such terms as the author-
    38  ity, in its sole discretion, determines will result in rates equal to or
    39  less  than the rates which would result if such downstate utility corpo-
    40  ration were to continue in operation.
    41    (c) The compensation paid by the  authority  to  a  downstate  utility
    42  corporation shall be just to the ratepayers in the service area who must
    43  pay such compensation.
    44    (d)  If  the  authority determines that it is the stock of a downstate
    45  utility corporation that should be taken, the proper measure of  damages
    46  shall be the fair market value thereof as evidenced by the price of such
    47  stock  on the exchange on which it is traded on the valuation date since
    48  there is an established market for such stock that is reflective of  its
    49  value. In no event, however, shall consequential or severance damages be
    50  awarded if control of such downstate utility corporation shall have been
    51  taken by the authority.
    52    (e)  If  the authority determines that it is the assets of a downstate
    53  utility corporation that should be taken, fair market  value  would  not
    54  constitute just compensation to such downstate utility corporation since
    55  there  is  an  insufficient  market in the usual sense for its assets to
    56  ascertain the value thereof from the market. In determining the  compen-

        A. 8887                             8
 
     1  sation  payable for such assets, there shall be taken into consideration
     2  the capitalization of  such  downstate  utility  corporation's  expected
     3  future earnings.
     4    (f)  Neither  consequential  nor  severance  damages are proper if the
     5  authority condemns all the assets of a downstate utility corporation.
     6    (g) Such an acquisition by the authority of the securities  or  assets
     7  of  a downstate utility corporation serves the public purposes of assur-
     8  ing the provision of an adequate supply of  gas  and  electricity  in  a
     9  reliable,  efficient and economic manner and retaining existing commerce
    10  and industry in and attracting new commerce and industry to the  service
    11  area, all of which are matters of state-wide concern.
    12    2.  In  furtherance of the legislative findings and determinations set
    13  forth in subdivision one  of  this  section,  the  authority  is  hereby
    14  authorized and empowered to acquire, through purchase or the exercise of
    15  the power of eminent domain, all or any part of the securities or assets
    16  of  a  downstate  utility  corporation,  as  the  authority  in its sole
    17  discretion may determine; provided, however, that  prior  to  proceeding
    18  with  any such acquisition under this title, the board of trustees shall
    19  determine, in its sole discretion based upon such engineering, financial
    20  and legal data, studies and opinions as it may  deem  appropriate,  that
    21  the  rates  projected  to be charged after such acquisition and for such
    22  reasonable period of time as the board of trustees  may  determine  will
    23  not  be  higher than the rates projected to be charged by such downstate
    24  utility corporation during such  period  if  such  acquisition  had  not
    25  occurred.
    26    3.  The authority also is authorized and empowered, in its discretion,
    27  to make a tender offer or tender offers for all or any  portion  of  the
    28  securities of a downstate utility corporation at such price or prices as
    29  the  authority  may  determine to be appropriate; provided, however that
    30  such tender offer or tender offers, in the sole judgment of the authori-
    31  ty, will result in rates less than the rates  which  would  result  from
    32  continued operation by such downstate utility corporation.
    33    (a)  The  authority  shall make such offer or offers or any adjustment
    34  thereof prior to acquiring any such securities or any assets of a  down-
    35  state  utility  corporation through the exercise of the power of eminent
    36  domain. The authority may pay for such securities in cash or by exchang-
    37  ing therefor the authority's bonds or a combination thereof.
    38    (b) In the case of a tender offer in which a subsidiary of the author-
    39  ity acquires at least sixty-six and two-thirds percent  of  a  downstate
    40  utility  corporation's common stock, such subsidiary may merge with such
    41  downstate utility  corporation  and  either  continue  in  existence  or
    42  dissolve, as it may determine.
    43    (c)  The  provisions  of  section  five  hundred  thirteen and article
    44  sixteen of the business corporation law and any other provisions of  law
    45  relating  to procedures in a corporate takeover, including without limi-
    46  tation chapter nine hundred fifteen of  the  laws  of  nineteen  hundred
    47  eighty-five,  shall  not  be  applicable to the actions of the authority
    48  pursuant to this title.
    49    (d) In determining whether acceptance of such a tender  offer  by  the
    50  authority  is  in the best interests of a downstate utility corporation,
    51  the directors of such downstate utility corporation shall  consider  not
    52  only  the  dollar  amount  of such offer but the interests of employees,
    53  suppliers, ratepayers, creditors (including holders  of  such  downstate
    54  utility  corporation's  debt securities), and the economy of the service
    55  area and the state.

        A. 8887                             9

     1    4. The authority, should it determine,  in  its  sole  discretion,  to
     2  acquire  the  stock  or assets of a downstate utility corporation by the
     3  exercise of the power of eminent domain, shall not  take  title  to  nor
     4  possession of such stock or assets prior to a final determination of the
     5  amount  of compensation to be paid for such stock or assets nor prior to
     6  a determination by the authority, in its sole discretion that the taking
     7  of such stock or assets will result in rates less than the  rates  which
     8  would  result  from continued operation by such downstate utility corpo-
     9  ration.  Notwithstanding the provisions of the eminent domain  procedure
    10  law,  the  provisions of subdivisions five and six of this section shall
    11  apply to the acquisition of the stock  or  property  of  such  downstate
    12  utility corporation by the power of eminent domain, provided however, to
    13  the  extent  the provisions herein do not supersede or conflict with the
    14  provisions of such law the provisions of such law shall apply.
    15    5. Procedure for acquisition of a downstate utility corporation stock.
    16  (a) In the event the authority determines to  acquire  the  stock  of  a
    17  downstate  utility  corporation  by the exercise of the power of eminent
    18  domain, having first entered into negotiations with such downstate util-
    19  ity corporation for the purchase of such stock, the authority  need  not
    20  hold any public hearing on its intention to condemn such stock or on the
    21  question of the public use of such action, such finding having been made
    22  by the legislature herein. The authority shall commence such acquisition
    23  by  serving  upon such downstate utility corporation and filing with the
    24  county clerk of the county in which the principal office of  such  down-
    25  state utility corporation is located a notice describing the stock being
    26  acquired,  the  valuation date, as determined by the authority, and such
    27  additional information as the authority may reasonably deem necessary to
    28  facilitate the process of condemnation and  payment.  The  notice  shall
    29  state  that  it is a notice of pendency of an acquisition proceeding and
    30  that the authority will elect whether or not to pay the amount  of  such
    31  award  when  it  has  been  finally determined. The authority also shall
    32  cause a copy of such notice (i) to be served  upon  the  stock  transfer
    33  agent or agents designated by such downstate utility corporation for the
    34  transfer  and  registration  of its stock and (ii) to be published in at
    35  least five successive issues of a daily  newspaper  of  national  circu-
    36  lation.
    37    (b)  Upon  receipt of such notice, the stock transfer agent or agents,
    38  at the expense of the authority, shall forthwith serve upon each of  the
    39  registered  owners of such stock a copy of such notice. Service shall be
    40  deemed sufficient if mailed by  certified  or  registered  mail  to  the
    41  address of each such owner as shown on a downstate utility corporation's
    42  stock  transfer  books.  Service  of  the notice upon the stock transfer
    43  agent or agents and its publication shall not be jurisdictional  prereq-
    44  uisites  to  the  validity of the taking. Failure to notify any owner of
    45  stock to be taken will not invalidate any proceedings brought  hereunder
    46  or any title acquired by the authority.
    47    (c)  Upon  filing  of  the  notice  described in paragraph (a) of this
    48  subdivision, the authority shall petition a special term of the  supreme
    49  court  in  the  judicial district in which such downstate utility corpo-
    50  ration has its principal office for the acquisition of the  stock.  Such
    51  petition shall be generally in the form prescribed by the eminent domain
    52  procedure law so far as consistent herewith.
    53    (d)  The supreme court in the district in which such downstate utility
    54  corporation has its principal office shall have  exclusive  jurisdiction
    55  to  hear  and determine all claims arising from the acquisition of stock
    56  by the exercise of the power of  eminent  domain  and  shall  hear  such

        A. 8887                            10
 
     1  claims  without  a jury and without referral to a referee or commission-
     2  ers.  Notwithstanding the provisions of section nine hundred one of  the
     3  civil practice law and rules, upon motion to the court by the authority,
     4  the  condemnation proceeding for the acquisition of stock shall be main-
     5  tained as a class action, pursuant to remaining  provisions  of  article
     6  nine  of  the  civil practice law and rules, and the owners of the stock
     7  shall be deemed a defendant class on the basis of the following  express
     8  legislative findings:
     9    (i) the class of such downstate utility corporation stock owners is so
    10  numerous that joinder of all members is impracticable;
    11    (ii)  the  issue  of  valuation  of such downstate utility corporation
    12  stock is common to all such downstate utility corporation  stock  owners
    13  and  there  are  questions  of law or fact common to the members of such
    14  class which predominate over any  questions  affecting  only  individual
    15  members;
    16    (iii)  the  claims or defenses, if any, of any representative owner of
    17  such downstate utility corporation stock to acquisition thereof  by  the
    18  authority are typical of the claims or defenses of the class;
    19    (iv)  there  are representative parties who will fairly and adequately
    20  protect the interests of the class; and
    21    (v) the prosecution of  separate  actions  by  or  against  individual
    22  members  of  the  class  would  create a risk of inconsistent or varying
    23  adjudications with respect to the issue of valuation  and  other  issues
    24  common to the class.
    25    (e)  The  procedure  for determining just compensation shall be in the
    26  manner prescribed by the eminent domain procedure  law,  except  to  the
    27  extent such procedure is inconsistent with the provisions of this title,
    28  in which case the provisions of this title shall control.
    29    (f)  Upon  the entry of an award finally determining just compensation
    30  for the stock, the authority shall have  sixty  days  after  receipt  of
    31  notice  of entry of such award within which to elect to proceed with the
    32  taking or to abandon such acquisition as provided in subdivision nine of
    33  this subdivision.   Notice of such  election  shall  be  served  by  the
    34  authority  and  by  the  stock transfer agent in the manner described in
    35  paragraph (a) of this subdivision. If the authority  elects  to  proceed
    36  with  the  acquisition, it shall deposit with the supreme court in which
    37  the condemnation proceeding was held an amount equal to the award within
    38  one hundred eighty days after receipt by  the  authority  of  notice  of
    39  entry  of  such  award.  Upon  the making of such deposit, the authority
    40  shall notify such downstate utility corporation's stock  transfer  agent
    41  in  writing  of  such  deposit. The sum so deposited shall be applied as
    42  provided in the eminent domain procedure law. Upon making  such  deposit
    43  and  giving  such notice to the stock transfer agent, title to all stock
    44  described in the notice of taking shall immediately vest in the authori-
    45  ty and the authority shall have the  immediate  right  thereto.  In  the
    46  event the authority elects to abandon the acquisition, the provisions of
    47  subdivision nine of this section shall apply.
    48    (g)  It  shall be a condition precedent to the payment of compensation
    49  for any such securities that  such  securities  be  surrendered  to  the
    50  supreme  court  or  to  such  other entity, including the issuer's stock
    51  transfer agent, as the supreme court may direct.
    52    6. Procedure  for  acquisition  of  a  downstate  utility  corporation
    53  assets.  (a)  If  the authority shall find it necessary or convenient to
    54  acquire any real or personal property of such downstate  utility  corpo-
    55  ration, other than securities, whether for immediate or future use, then
    56  the  authority  need  not  determine  that such property is required for

        A. 8887                            11

     1  public use, since the legislature already has made such determination in
     2  this title which determination shall be binding for  all  purposes.  The
     3  authority  need  not publish any notice of its intention to acquire such
     4  property  or  hold  any  public  hearing  with respect thereto or to the
     5  public use of such action.
     6    (b) When any real property of such downstate utility corporation with-
     7  in this state is sought to be acquired by the exercise of the  power  of
     8  eminent  domain, and after the authority shall have entered into negoti-
     9  ations with such downstate utility corporation for the purchase of  such
    10  property,  the authority shall cause a survey and map to be made thereof
    11  and shall cause such survey and map to be filed in its office and in the
    12  office of the county clerk in which  such  property  is  located.  There
    13  shall  be  annexed  to such survey and map a certificate executed by the
    14  chief engineer of the authority, or by such other officer or employee as
    15  may be designated by the board of trustees, stating that the property or
    16  interest therein described in such survey and map is necessary  for  its
    17  purposes.
    18    (c)  Upon  filing  such survey and map, the authority shall petition a
    19  special term of the supreme court in the judicial district in which  the
    20  property  is  located  for  the acquisition of such property or interest
    21  therein. Such petition shall describe the property being  acquired,  the
    22  valuation  date,  as  determined  by  the authority, and such additional
    23  information as the authority may reasonably deem necessary to facilitate
    24  the process of condemnation and payment. The petition shall  state  that
    25  the  authority will elect whether or not to pay the amount of such award
    26  when it has been finally determined. In all other respects,  such  peti-
    27  tion  shall  be  generally  in the form prescribed by the eminent domain
    28  procedure law, so far as consistent herewith.  Such  petition,  together
    29  with  a  notice  of  pendency  of  the proceeding, shall be filed in the
    30  office of the county clerk of  the  county  in  which  the  property  is
    31  located  and shall be indexed and recorded as provided by law. A copy of
    32  such petition, together with a notice of  the  presentation  thereof  to
    33  such  special term of the supreme court, shall be served upon the owners
    34  of such property as provided in the eminent domain  procedure  law.  The
    35  authority may cause a duplicate original affidavit of the service there-
    36  of to be recorded in the books used for recording deeds in the office of
    37  the  county  clerk of the county in which the property described in such
    38  notice is located, and the recording of such affidavit  shall  be  prima
    39  facie evidence of due service thereof.
    40    (d)  Subsequent proceedings shall be conducted generally in the manner
    41  prescribed by the eminent domain procedure law except to the extent  the
    42  provisions  thereof  are inconsistent with the provisions of this title,
    43  in which case the provisions of this title shall control.
    44    (e) In any proceeding involving the valuation of a  downstate  utility
    45  corporation's  property  taken by the authority, the supreme court shall
    46  ascertain and determine just compensation for the property taken  as  of
    47  the  valuation date, giving due consideration to the applicable findings
    48  and determinations of the legislature set forth in subdivision  of  this
    49  section.
    50    (f)  Should a downstate utility corporation's property be taken by the
    51  exercise of the power of eminent domain and if  such  downstate  utility
    52  corporation  shall have agreed upon the compensation to be paid therefor
    53  in settlement of the proceeding, if, such downstate utility  corporation
    54  shall be entitled to payment of the agreed or awarded compensation with-
    55  in  one  hundred  eighty  days  after the date of the agreement upon the
    56  amount of the compensation or of the entry of the award,  together  with

        A. 8887                            12
 
     1  interest  upon the amount of such compensation from the time of acquisi-
     2  tion thereof by the authority to the date of  payment  of  such  compen-
     3  sation; but such interest shall cease upon the service by the authority,
     4  upon  the  person  or  corporation  entitled thereto, of a fifteen days'
     5  notice that the authority is ready and willing to pay the amount of such
     6  compensation upon the presentation of proper proofs and  vouchers.  Such
     7  notice  shall be served personally or by registered mail and publication
     8  thereof shall be made at least once a week for three successive weeks in
     9  a daily newspaper of general circulation in the  county  in  which  such
    10  property or any part thereof is located.
    11    (g)  Upon  the entry of an award finally determining just compensation
    12  for the property of such downstate utility  corporation,  the  authority
    13  shall  have  sixty  days  after receipt of notice of entry of such award
    14  within which to elect to proceed with the  taking  or  to  abandon  such
    15  acquisition  as  provided in subdivision nine of this section. Notice of
    16  such election shall be served by the authority on  the  owners  of  such
    17  property  in  the manner described in paragraph (c) of this subdivision.
    18  If the authority elects to proceed with the acquisition, it shall depos-
    19  it with the supreme court in which the condemnation proceeding was  held
    20  an  amount  equal  to  the  award  within  one hundred eighty days after
    21  receipt by the authority of notice of entry  of  such  award.  Upon  the
    22  making of such deposit, the authority shall notify such downstate utili-
    23  ty  corporation  in writing of such deposit.  The sum so deposited shall
    24  be applied as provided in the eminent domain procedure law. Upon  making
    25  such  deposit  and  giving  such notice to such downstate utility corpo-
    26  ration, title to all property described in the notice  of  taking  shall
    27  immediately vest in the authority and the authority shall have the imme-
    28  diate  right  thereto.  The order setting forth the award, together with
    29  evidence from the clerk of the court of receipt of  the  amount  of  the
    30  award, shall be filed in the office of the county clerk of the county in
    31  which  the  property is located and shall be indexed and recorded in the
    32  same manner as a notice of pendency under the eminent  domain  procedure
    33  law.  The  owner  or person in possession of such property shall deliver
    34  possession thereof to the authority upon demand, and in case  possession
    35  is  not  delivered  when demanded or demand is not convenient because of
    36  absence of the owner or inability to locate or determine the owner,  the
    37  authority  may  apply to the court without notice for an order requiring
    38  the sheriff to put it into possession of such  real  property.  Such  an
    39  order  shall  be executed as if it were an execution for the delivery of
    40  the possession of the property. In the event  the  authority  elects  to
    41  abandon  the  acquisition,  the  provisions  of subdivision nine of this
    42  section shall apply.
    43    7. At any time the  authority  and  its  duly  authorized  agents  and
    44  employees may, on reasonable notice and during business hours, (a) enter
    45  upon any real property proposed to be acquired for the purpose of making
    46  the  surveys  or maps mentioned in this section, or of making such other
    47  surveys, inspections or examinations of real and personal  property  and
    48  (b)  inspect  and  make copies of the books and records of the issuer of
    49  such securities, all as the authority may deem necessary  or  convenient
    50  for the purposes of this title.
    51    8.  Upon  the  acquisition of all the outstanding shares of stock of a
    52  corporate issuer representing all the voting rights and equity  thereof,
    53  the  authority  shall  as  soon as reasonably practicable take all steps
    54  necessary to ensure that the rights and claims of all the holders of any
    55  other stock and debt securities and all other creditors thereof  are  as
    56  secure as they were immediately prior to the acquisition by the authori-

        A. 8887                            13
 
     1  ty.  Nothing  herein shall prohibit the authority from taking any appro-
     2  priate and prudent action to renegotiate and restructure  such  debt  or
     3  from  purchasing  the preferred stock and debt securities issued by such
     4  corporation at such prices as the authority may determine. The authority
     5  may  also exchange its bonds for any outstanding preferred stock or debt
     6  securities with the consent of the holders of such  preferred  stock  or
     7  debt securities.
     8    9. If the authority determines, in its sole discretion, that the total
     9  cost  of  acquisition  will result in rates in excess of the rates which
    10  would result from continued operation by such downstate  utility  corpo-
    11  ration,  the authority shall abandon the acquisition. In such event, the
    12  authority shall serve notice of such abandonment (a) in the  case  of  a
    13  stock  acquisition,  by  causing to be mailed by certified or registered
    14  mail a copy of such notice to each former owner of  stock  as  shown  on
    15  such  downstate  utility  corporation's stock transfer books immediately
    16  prior to such acquisition at the address shown on  such  stock  transfer
    17  books  and  by causing to be published a copy of such notice in at least
    18  five successive issues of a daily newspaper of national  circulation  or
    19  (b)  in the case of an asset acquisition, in the same manner as provided
    20  for the service of a petition for acquisition in paragraph (c) of subdi-
    21  vision six of this section.  In addition, in the case of an asset acqui-
    22  sition the authority shall file a copy of the notice of abandonment with
    23  the county clerk of the county in which is  located  any  real  property
    24  that  was  taken  and  with  the clerk of the supreme court in which the
    25  proceeding was instituted.
    26    10. The provisions with respect to the valuation of stock and property
    27  set forth in this section shall apply only to stock  or  property  of  a
    28  downstate  utility  corporation,  as  the  case  may be, acquired by the
    29  authority by the exercise of the power of eminent domain.
    30    § 1022-f. Deposit and investment of moneys of the  authority.  1.  All
    31  moneys  of the authority, from whatever source derived, except as other-
    32  wise authorized or provided in this title, shall upon receipt be  depos-
    33  ited  forthwith  in  a  bank  or banks designated by the trustees, to be
    34  selected in accordance with such standards as  the  trustees  shall  set
    35  forth  in  the  by-laws or investment guidelines of the authority, which
    36  standards shall take into account the creditworthiness and capital posi-
    37  tion of the depositary bank or banks. The moneys in such accounts may be
    38  invested in obligations of the state or the United States, or guaranteed
    39  by either in accordance with practices that the trustees shall set forth
    40  in the by-laws or investment guidelines of the authority. The moneys  in
    41  such  accounts shall be withdrawn on the order of such person or persons
    42  as the directors shall authorize in the by-laws  of  the  authority  and
    43  shall  be  applied  to  the  use  of the authority as the trustees shall
    44  authorize in the by-laws of the authority. All deposits of  such  moneys
    45  shall  be secured in accordance with section twenty-nine hundred twenty-
    46  five of this chapter. The state  comptroller  and  his  or  her  legally
    47  authorized  representatives  are  authorized  and empowered from time to
    48  time to examine the accounts and books of the authority,  including  its
    49  receipts,  disbursements,  contracts, leases, sinking funds, investments
    50  and any other records and papers relating to its financial standing; the
    51  authority shall not be required to pay a fee for any such examination.
    52    2. The authority shall have power to contract with holders of  any  of
    53  its  bonds or notes or other obligations, or any trustee therefor, as to
    54  the custody, collection, securing, investment and payment of any  moneys
    55  of  the  authority  and of any moneys held in trust or otherwise for the
    56  payment of bonds or notes or other obligations, and  to  carry  out  any

        A. 8887                            14
 
     1  such  contract.  Moneys  held  in  trust or otherwise for the payment of
     2  bonds or notes or other obligations or in any way  to  secure  bonds  or
     3  notes  or  obligations  and  deposits of such moneys shall be secured in
     4  full  in  direct  obligations  of  the federal government the payment of
     5  which is guaranteed by the United States of  America.  Such  investments
     6  shall  be  held  on deposit only in banks having a minimum credit rating
     7  and a minimum accumulated capital, as the trustees shall specify in  the
     8  by-laws or investment guidelines of the authority.
     9    3. Subject to agreements with noteholders and bondholders or any trus-
    10  tee therefor, the authority shall prescribe a uniform system of accounts
    11  in accordance with generally accepted accounting principles.
    12    4.  The  trustees  shall  adopt investment guidelines and standards to
    13  implement the foregoing provisions of this section, which guidelines and
    14  standards shall be reviewed annually by the trustees and shall  be  made
    15  available to state and municipal officials and to the public.
    16    §  1022-g.  Conflicts  of  interest.  Eligibility for appointment as a
    17  trustee, officer or employee of the authority shall be  subject  to  the
    18  provisions  of section twenty-eight hundred twenty-five of this chapter.
    19  In addition to the requirements of such section:
    20    1. If any trustee, officer or employee of the authority shall have  an
    21  interest,  either  direct  or  indirect,  in  any  contract to which the
    22  authority is or is to be a party, such interest shall  be  disclosed  to
    23  the  authority  in  writing and shall be set forth in the minutes of the
    24  authority. The trustee, officer or employee having such  interest  shall
    25  not  participate  in  any  action  by the authority with respect to such
    26  contract.
    27    2. No trustee, officer or employee of the authority shall be deemed to
    28  have such an interest solely by reason of the ownership of  two  percent
    29  or  less of the securities of a corporation which is or is to be a party
    30  to a contract with the authority, including without limitation the hold-
    31  ing company of any banking institution in which the funds of the author-
    32  ity are, or are to be deposited, or which is or is to be acting as trus-
    33  tee or paying agent under any bond or note resolution,  trust  indenture
    34  or similar instrument to which the authority is a party.
    35    3.  Nothing  in this section shall be deemed or construed to limit the
    36  right of any trustee, officer or employee of the authority to acquire an
    37  interest in the securities of the authority.
    38    § 1022-h. Sale of surplus power. Whenever any electric power which the
    39  authority may acquire creates a surplus  over  the  amount  of  electric
    40  power  required  by the residents of the service area, the authority may
    41  sell such surplus in territory outside the service area to  persons,  or
    42  public  or  private  corporations. In acquiring any facility or property
    43  which also serves any municipality  or  territory  outside  the  service
    44  area,  the  authority,  if it deems it advantageous and economical so to
    45  do, may, with the consent of the trustees, serve any  such  municipality
    46  or  territory  or  sell  electric power to persons, or public or private
    47  corporations in such territory or to such municipality.
    48    § 1022-i. Audit and annual reports. 1. The accounts of  the  authority
    49  shall  be  subject  to  the supervision of the comptroller and an annual
    50  audit shall be performed by an independent certified  public  accountant
    51  selected  by  the  trustees  and  shall be made available to the munici-
    52  palities served by the authority and to the public.
    53    2. The authority shall submit a detailed annual report pursuant to and
    54  as specified in section twenty-eight hundred of this chapter, and a copy
    55  of such report shall be filed with the county executives of the counties
    56  within the service area, and with the  mayors  and  supervisors  of  the

        A. 8887                            15
 
     1  municipalities  within  the  service area and shall be made available to
     2  the municipalities served by the authority and to the public. Nothing in
     3  this section shall be deemed to exempt the authority from  any  rule  or
     4  regulation, including the public authorities law.
     5    §  1022-j. Bonds, notes and other obligations of the authority. 1. The
     6  authority shall have power and is hereby authorized from time to time to
     7  issue its bonds, notes or other obligations, in an aggregate amount  not
     8  to  exceed  one  hundred twenty-five million dollars, for the purpose of
     9  financing any capital project authorized by this  title,  including  but
    10  not  limited  to,  the  acquisition  of any real or personal property or
    11  facilities deemed necessary by the authority,  development  and  profes-
    12  sional  expenses,  and funding any capital or other reserve funds estab-
    13  lished in connection with the authority's operations  or  issuances,  in
    14  such  principal  amount  as  the  trustees  shall determine necessary to
    15  perform its corporate duties and further its purposes as  authorized  in
    16  this title. The maximum maturity of any such bond shall not exceed thir-
    17  ty  years  from  its  date of issuance. The maximum maturity of any such
    18  note or other obligation shall not exceed five years from  its  date  of
    19  issuance.
    20    2. Except as may be otherwise expressly provided by the authority, the
    21  issuance  of  bonds,  notes or other obligations, shall be general obli-
    22  gations of the authority payable out of any moneys or  revenues  of  the
    23  authority, subject only to any agreements with the holders of particular
    24  bonds,  notes  or  other  obligations  pledging any particular moneys or
    25  revenues.
    26    3. The authority shall have power from time to time, whenever it deems
    27  refunding expedient, to refund any bonds, notes or other obligations  by
    28  the issuance of new bonds, notes or other obligations, up to one hundred
    29  twenty-five  million  dollars in the aggregate, whether the bonds, notes
    30  or other obligations to be refunded have or have not  matured,  and  may
    31  issue bonds, notes or other obligations partly to refund bonds, notes or
    32  other  obligations  then  outstanding  and  partly for any other purpose
    33  described in this section. Refunding bonds, notes or  other  obligations
    34  may  be  exchanged  for  the  bonds,  notes  or  other obligations to be
    35  refunded, with such cash adjustments as may be agreed, or  may  be  sold
    36  with  the proceeds applied to the purchase or payment of the bonds to be
    37  refunded.
    38    4. Bonds may be issued either in a series with multiple discrete matu-
    39  rity dates or as term bonds with a  single  maturity  date.  The  bonds,
    40  notes  or  other  obligations  shall  be authorized by resolution of the
    41  trustees and shall bear such date or  dates,  mature  at  such  time  or
    42  times, bear interest at such rate or rates, payable annually or semi-an-
    43  nually,  be in such denominations, be in such form, carry such registra-
    44  tion privileges, be executed in such manner, be payable in lawful  money
    45  of  the United States of America at such place or places, and be subject
    46  to such terms of redemption,  as  such  resolution  or  resolutions  may
    47  provide.  In  the  event that term bonds, notes or other obligations are
    48  issued, the resolution authorizing the same may make such provisions for
    49  the establishment and management  of  adequate  sinking  funds  for  the
    50  payment thereof, as the authority may deem necessary.
    51    5.  The bonds, notes or other obligations of the authority may be sold
    52  at public or private sale for such price  or  prices  as  the  authority
    53  shall  determine.  For  a  private sale of its securities, the authority
    54  shall obtain the written approval of the terms of  such  sale  from  the
    55  comptroller  if  such  sale is to a party other than the comptroller, or

        A. 8887                            16
 
     1  from the director of the budget where such sale is to  the  comptroller,
     2  in either case prior to closing the issuance transaction.
     3    6.  Any  resolution  authorizing any issuance of bonds, notes or other
     4  obligations may contain  provisions,  which  shall  be  a  part  of  the
     5  contract between the authority and the holders of the issued securities,
     6  as to:
     7    (a)  pledging  all or any part of the revenues of the authority or its
     8  projects or any revenue producing contract  or  contracts  made  by  the
     9  authority  with  any individual, partnership, limited liability company,
    10  corporation or association to secure the payment of the bonds, notes  or
    11  other obligations, subject to such agreements with holders of securities
    12  of the authority;
    13    (b)  pledging,  assigning  or  creating  a  lien on all or any part of
    14  assets of the authority, including mortgages  and  obligations  security
    15  mortgages,  to  secure  the payment of the bonds, subject to such agree-
    16  ments with holders of securities of the authority;
    17    (c) the setting aside of reserves or sinking funds, and the regulation
    18  and disposition thereof;
    19    (d) establishment of special funds for deposit of moneys received from
    20  the proceeds of the issuance of securities as the trustees shall  deter-
    21  mine,  consistent  with the authorizing resolution and the provisions of
    22  this title;
    23    (e) limitations on the purpose to which the proceeds of  sale  of  any
    24  issuance  of  bonds, notes or other obligations then or thereafter to be
    25  issued may be applied and pledging such proceeds to secure  the  payment
    26  of the bonds, notes or other obligations;
    27    (f)  limitations  of  the issuance of additional bonds, notes or other
    28  obligations; the terms upon which additional bonds, notes or other obli-
    29  gations may be issued and secured;  and  the  refunding  of  outstanding
    30  bonds, notes or other obligations;
    31    (g)  the  procedure,  if  any, by which the terms of any contract with
    32  bondholders may be amended or abrogated, the amount of bonds the holders
    33  of which must consent thereto, and the manner in which such consent  may
    34  be given;
    35    (h)  providing for the appointment and powers of a trustee for holders
    36  of securities, and the rights, powers and duties of such trustee as  the
    37  directors may determine;
    38    (i)  limitations  on the amount of moneys derived from a project to be
    39  expended for operating, administrative or other expenses of the authori-
    40  ty;
    41    (j) defining the acts or omissions to act  which  shall  constitute  a
    42  default in the duties of the authority to holders of its obligations and
    43  providing  the  rights  and  remedies  of such holders in the event of a
    44  default, provided, however, that such rights and remedies shall  not  be
    45  inconsistent with the laws of the state and any other provisions of this
    46  title;  and  provided,  further, however, that nothing contained in this
    47  title shall be deemed to restrict the right of the state or of any muni-
    48  cipality to amend, modify or otherwise alter statutes, local laws, ordi-
    49  nances, resolutions or agreements imposing or relating to taxes or  fees
    50  or  appropriations  relating thereto; and there shall not be included in
    51  any resolution or contract or agreement with the holders of  the  bonds,
    52  notes  or other obligations authorized by this title any provision which
    53  provides that a default shall occur as a result of the  state  or  of  a
    54  municipality  exercising  its  right to amend, modify or otherwise alter
    55  laws, ordinances, resolutions or  agreements  imposing  or  relating  to
    56  taxes or fees or appropriations relating thereto; and

        A. 8887                            17
 
     1    (k)  any  other  provisions  not inconsistent with those enumerated in
     2  this subdivision and necessary to effect its issuances of  bonds,  notes
     3  or other obligations and the rights of the holders of its securities, or
     4  otherwise in furtherance of its corporate purposes.
     5    7.  Notwithstanding any other provision of this title, any such resol-
     6  ution or resolutions shall contain a covenant by the authority  that  it
     7  will at all times maintain rates, fees or charges sufficient to pay, and
     8  that  any  contracts  entered  into  by  the  authority  for the sale or
     9  distribution of power shall contain rates, fees or charges sufficient to
    10  pay the costs of operation and maintenance of the project, the principal
    11  of and interest on any obligations issued pursuant to such resolution as
    12  the same severally become due and payable,  and  to  maintain  any  debt
    13  service  coverage  ratios and any reserves required by the terms of such
    14  resolution or resolutions. Provided however, that the total rates, fees,
    15  and charges shall not exceed the prevailing electric rate in the service
    16  area. The prevailing electric rate in the service area  shall  mean  the
    17  average  of  the total rates, fees, and charges paid by former customers
    18  of  the  downstate  utility  corporation  that  served  such  customers.
    19  Compliance  with the prevailing electric rates in the service area shall
    20  be left to the sole determination of the public service commission.
    21    8. It is the intent of this title that any pledge of revenues or other
    22  moneys or of a revenue producing  contract  or  contracts  made  by  the
    23  authority  shall  be  valid and binding from the time when the pledge is
    24  made; that the revenues or other moneys or proceeds of any  contract  or
    25  contracts  so  pledged  and  thereafter  received by the authority shall
    26  immediately be subject to the lien of such pledge without  any  physical
    27  delivery  thereof  or  further act; and that the lien of any such pledge
    28  shall be valid and binding as against all parties having claims  of  any
    29  kind  in  tort, contract or otherwise against the authority irrespective
    30  of whether such parties have notice thereof. Neither the resolution  nor
    31  any other instrument by which a pledge is created need be recorded.
    32    9.  Neither the trustees of the authority nor any person executing the
    33  bonds, notes or other obligations shall  be  liable  personally  on  the
    34  bonds,  notes or other obligations or be subject to any personal liabil-
    35  ity or accountability by reason of the issuance thereof.
    36    10. The authority shall have the power  out  of  any  funds  available
    37  therefor  to  purchase  bonds, notes or other obligations. The authority
    38  may hold, pledge, cancel or resell such  bonds,  notes  or  other  obli-
    39  gations, subject to and in accordance with agreements with bondholders.
    40    11.  Any bonds, notes or other obligations issued by the authority are
    41  hereby made securities in which all public officers and bodies  of  this
    42  state  and  all municipalities and municipal subdivisions, all insurance
    43  companies and associations and other persons carrying  on  an  insurance
    44  business, all banks, bankers, trust companies, savings banks and savings
    45  associations, including savings and loan associations, building and loan
    46  associations, investment companies and other persons carrying on a bank-
    47  ing  business,  and  all  other persons whatsoever who are authorized to
    48  invest in bonds, notes or other obligations of the state,  may  properly
    49  and legally invest funds including capital in their control or belonging
    50  to  them;  subject to the provisions of any other general or special law
    51  to the contrary.
    52    12. The authority is authorized to obtain from any department or agen-
    53  cy of the United States of America or the state or  any  nongovernmental
    54  insurer or financial institution any insurance, guaranty or other credit
    55  support  device,  to  the extent available, as to, or for the payment or
    56  repayment of interest or principal, or both, or any part thereof, on any

        A. 8887                            18
 
     1  bonds, notes or other obligations issued by the authority and  to  enter
     2  into  any  agreement  or  contract with respect to any such insurance or
     3  guaranty, except to the extent that the same would in any way impair  or
     4  interfere  with  the ability of the authority to perform and fulfill the
     5  terms of any agreement made with the holders of outstanding bonds, notes
     6  or other obligations of the authority.
     7    13. In addition to the powers  conferred  in  this  section  upon  the
     8  authority to secure its bonds, notes or other obligations, the authority
     9  shall  have the power in connection with the issuance of bonds, notes or
    10  other obligations to enter into such agreements  as  the  authority  may
    11  deem  necessary,  convenient or desirable concerning the use or disposi-
    12  tion of its revenues or other moneys or property, and for  the  acquisi-
    13  tion,  alteration  or  disposition  of  its property, real and personal,
    14  including the mortgaging of any of its properties  and  the  entrusting,
    15  pledging  or  creation of any other security interest in any such reven-
    16  ues, moneys or properties and the doing of any act, including refraining
    17  from doing any act, which the authority would have the right  to  do  in
    18  the  absence  of  such agreements. The authority shall have the power to
    19  enter into amendments of any such agreements within the  powers  granted
    20  to  the  authority  by  this  title  and to perform such agreements. The
    21  provisions of any such agreements may be made a  part  of  the  contract
    22  with the holders of bonds, notes or other obligations of the authority.
    23    14.  All  bonds,  notes  and other obligations issued by the authority
    24  under the provisions of this title are hereby declared to have  all  the
    25  qualities  and  incidents of negotiable instruments under the applicable
    26  laws of the state.
    27    15. Nothing in this section shall be deemed to allow the authority  to
    28  exceed its one hundred twenty-five million dollar aggregate debt limit.
    29    §  1022-k.  State  and  municipalities not liable on bonds or notes or
    30  other obligations. The securities of the authority shall not be  a  debt
    31  of the state or of any municipality, and neither the state nor any muni-
    32  cipality shall be liable thereon. The authority shall not have the power
    33  to  pledge  or  restrict the credit, the revenues or the taxing power of
    34  the state or of any municipality, and neither the credit,  the  revenues
    35  nor  the  taxing  power  of the state or of any municipality shall be or
    36  shall be deemed to be pledged to the payment of any  securities  of  the
    37  authority. Each evidence of indebtedness of the authority, including the
    38  securities  of  the authority, shall contain a clear and explicit state-
    39  ment of the provisions of this section. Nothing in this title  shall  be
    40  deemed to obligate the state or any municipality to make any payments or
    41  impose any taxes to satisfy the debt service obligations of the authori-
    42  ty.
    43    §  1022-l. Agreement of the state. The state does hereby pledge to and
    44  agree with the holders of any bonds, notes or other  obligations  issued
    45  by  the  authority  under  this  title, that the state will not limit or
    46  alter the rights hereby vested in the authority to establish and collect
    47  the revenues and other charges referred to in this title and to  fulfill
    48  the  terms of any agreements made with or for the benefit of the holders
    49  of the securities, or in any way impair the rights and remedies  of  the
    50  bondholders  until  such  securities  are  fully met and discharged. The
    51  authority is authorized to include this  pledge  of  the  state  in  all
    52  agreements  by the authority with the holders of its securities. Nothing
    53  contained in this title shall be deemed to restrict  any  right  of  the
    54  state  or municipality to amend, modify, repeal or otherwise alter stat-
    55  utes imposing or relating to taxes or fees, or  appropriations  relating
    56  thereto. The authority shall not include within any resolution, contract

        A. 8887                            19
 
     1  or  agreement  with  holders  of  the  bonds, notes or other obligations
     2  issued under this article any provision which provides  that  a  default
     3  occurs  as  a  result  of  the state or of a municipality exercising its
     4  right  to amend, modify, or repeal or otherwise alter any statute impos-
     5  ing or relating to taxes, fees, or appropriations relating thereto.
     6    § 1022-m. Exemption of the authority from taxation. 1.  It  is  hereby
     7  found  and declared that the operation of the authority is primarily for
     8  the benefit of the people of the participating municipalities,  counties
     9  and the state, for the improvement of their health, welfare and prosper-
    10  ity,  and  is  a  public purpose, and the authority shall be regarded as
    11  performing an  essential  governmental  function  in  carrying  out  the
    12  provisions of this title.
    13    2.  The  authority  shall  be required to pay no taxes nor assessments
    14  upon any of the property acquired or controlled by it or upon its activ-
    15  ities in the operation and maintenance thereof or  upon  income  derived
    16  therefrom, provided that nothing herein shall prevent the authority from
    17  entering into agreements to make payments in lieu of taxes.
    18    3.  The  authority  shall  make  payments  in lieu of taxes to munici-
    19  palities and school districts equal to the taxes and  assessments  which
    20  would have been received from year to year by such jurisdiction.
    21    4.  The  authority shall also make payments in lieu of taxes for those
    22  taxes which would otherwise be imposed upon a utility corporation pursu-
    23  ant to: (a) section one hundred  eighty-six-a  and  former  section  one
    24  hundred  eighty-six  of  the  tax law as such sections were in effect on
    25  December thirty-first,  nineteen  hundred  ninety-nine;  (b)  any  taxes
    26  imposed  by  a  city within the authority's service area pursuant to the
    27  authorization granted by section twenty-b of the general city  law;  and
    28  (c)  any  taxes imposed by a village within the authority's service area
    29  pursuant to authorization granted by section 5-530 of the village law.
    30    5. Notwithstanding the exemption in subdivision two of  this  section,
    31  the  authority shall also be subject to the assessments imposed pursuant
    32  to section eighteen-a of the public service law.
    33    6. The securities issued by the authority, and  the  income  therefrom
    34  shall,  at  all times, be free from taxation, except for estate and gift
    35  taxes.
    36    7. Nothing in this title shall relieve the authority  from  its  obli-
    37  gations to register for sales tax purposes, collect state or local sales
    38  and  compensating  use  taxes imposed by or pursuant to the authority of
    39  articles twenty-eight and twenty-nine of  the  tax  law,  and  otherwise
    40  comply with those articles on its sale of property or services.
    41    §  1022-n.  Actions  against  the  authority.  1.  Any action, suit or
    42  proceeding to which the authority may be a party in which  any  question
    43  arises  as  to  the  validity of this title or the valuation of stock or
    44  assets acquired by the authority by the exercise of the power of eminent
    45  domain shall be preferred over all other civil causes in all  courts  of
    46  the state, except election matters, and shall be heard and determined in
    47  preference  to all other civil business pending therein, except election
    48  matters, irrespective of position on the calendar. The  same  preference
    49  shall  be  granted  upon  application of counsel to the authority in any
    50  action or proceeding questioning the validity of this title or the valu-
    51  ation of stock or assets acquired by the authority by  the  exercise  of
    52  the  power  of  eminent  domain  in which such counsel may be allowed to
    53  intervene. The venue of any such action or proceeding shall be  laid  in
    54  the supreme court pursuant to article five of the civil practice law and
    55  rules.

        A. 8887                            20
 
     1    2.  In  the  event any party shall appeal an award of compensation for
     2  the taking by the authority of stock or assets, such party shall post  a
     3  bond in such amount, if any, as the supreme court shall deem appropriate
     4  to  adequately  protect  the  interests of the other party under all the
     5  circumstances.
     6    3.  An action against the authority founded on tort shall be commenced
     7  in compliance with all the requirements of section fifty-e of the gener-
     8  al municipal law, except that an action against the authority for wrong-
     9  ful death shall be commenced in accordance with the provisions of  title
    10  eleven of article nine of this chapter.
    11    §  1022-o. Equal employment opportunity. All contracts entered into by
    12  the authority pursuant to this title of whatever nature  and  all  docu-
    13  ments soliciting bids or proposals therefor shall contain or make refer-
    14  ence to the following provision:
    15    The  contractor shall not discriminate against employees or applicants
    16  for employment because of race, creed, color, national origin, sex, age,
    17  disability or marital status, and will undertake  or  continue  existing
    18  programs of affirmative action to ensure that minority group persons and
    19  women  are  afforded  equal  opportunity  without  discrimination.  Such
    20  programs shall include, but not be limited to, recruitment,  employment,
    21  job assignment, promotion, upgrading, demotion, transfer, layoff, termi-
    22  nation,  rates  of pay or other forms of compensation, and selection for
    23  training and retraining, including apprenticeship and on-the-job  train-
    24  ing.
    25    §  1022-p.  Limitation of liability; indemnification. 1. The trustees,
    26  officers and employees of the authority, while acting within  the  scope
    27  of  their  authority  as  trustees,  officers or employees, shall not be
    28  subject to any personal or civil liability resulting from the  exercise,
    29  carrying  out  or  advocacy  of any of the authority's purposes or power
    30  unless the conduct of the trustees, officers  or  employees  is  finally
    31  determined  by  a  court  of competent jurisdiction to constitute inten-
    32  tional wrongdoing or recklessness.
    33    2. The provisions of section eighteen of the public officers law shall
    34  apply to trustees, officers and employees of the authority in connection
    35  with any and all claims, demands, suits, actions  or  proceedings  which
    36  may  be  made or brought against any of them arising out of any determi-
    37  nations made or actions taken or omitted to be taken in compliance  with
    38  any actions taken pursuant to the powers of this title.
    39    3.  As  used  in  this  section,  the  terms  "trustee", "officer" and
    40  "employee" shall include a former trustee, officer or employee  and  his
    41  or her estate or judicially appointed personal representative.
    42    4. Nothing in this section shall limit the obligations of a "trustee",
    43  "officer",  or  "employee"  of  the  authority or of a subsidiary of the
    44  authority as a "person required to collect tax", as such term is defined
    45  in article twenty-eight of the tax law,  if  such  trustee,  officer  or
    46  employee  is,  or  was, under a duty to act for the authority or subsid-
    47  iary, or both, as the case may be, in complying with any requirement  of
    48  article  twenty-eight or related provision of article twenty-nine of the
    49  tax law.
    50    § 1022-q. Website. The authority shall make accessible to the  public,
    51  via its official or shared internet website, documentation pertaining to
    52  its  mission,  current activities, most recent annual financial reports,
    53  current year budget and its most recent independent audit report  unless
    54  such  information  is covered by subdivision two of section eighty-seven
    55  of the public officers law.

        A. 8887                            21

     1    § 1022-r. Prevailing wage. Whenever  the  authority  enters  into  any
     2  contract,  subcontract,  lease, grant, bond, covenant or other agreement
     3  for or in connection with any construction, demolition,  reconstruction,
     4  excavation,  rehabilitation, repair, renovation, alteration, or improve-
     5  ment  project, such project shall be deemed to be a public works project
     6  for the purposes of article eight of the  labor  law,  and  all  of  the
     7  provisions  of article eight of the labor law shall be applicable to all
     8  the work involved in the construction, demolition, reconstruction, exca-
     9  vation, rehabilitation, repair, renovation, alteration,  or  improvement
    10  of  such  project.  Funds,  financial  assistance, or any other benefits
    11  provided pursuant to this article  shall  not  be  utilized  for  or  in
    12  connection  with  the  construction,  demolition,  reconstruction, exca-
    13  vation, rehabilitation, repair, renovation, alteration,  or  improvement
    14  of any project to which the provisions of article eight of the labor law
    15  are not applicable.
    16    §  1022-s.  Periodic  review by legislature. Beginning in the year two
    17  thousand twenty, and not more  than  every  ten  years  thereafter,  the
    18  legislature  of  the  state  of  New  York shall conduct a comprehensive
    19  review, of the structure, activities and operations  of  the  authority,
    20  and  the  authority shall provide such records, reports and testimony as
    21  the legislature may request to assist in the conduct of this review.
    22    § 1022-t. Severability. The provisions of this  title  are  severable,
    23  and  if  any clause, sentence, paragraph, section or part of this title,
    24  or the application thereof to  any  person  or  circumstance,  shall  be
    25  adjudged  by  any court of competent jurisdiction to be invalid or unen-
    26  forceable, such judgment shall not  affect,  impair  or  invalidate  the
    27  remainder  of  this  title  or  the application of such provision to any
    28  other person or circumstance, but shall be confined in its operation  to
    29  the  clause,  sentence,  paragraph, section or part thereof or person or
    30  circumstance directly involved in the controversy in which such judgment
    31  shall have been rendered.
    32    § 2. Subdivision 1 of section 51 of  the  public  authorities  law  is
    33  amended by adding a new paragraph o to read as follows:
    34    o. Downstate New York Power Authority
    35    § 3. This act shall take effect on the one hundred eightieth day after
    36  it  shall have become a law. Effective immediately, the addition, amend-
    37  ment and/or repeal of any rule or regulation necessary for the implemen-
    38  tation of this act on its effective date are authorized to be  made  and
    39  completed on or before such effective date.
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