N.Y. Public Authorities Law § 1020-f: General powers of the authority

* § 1020-f. General powers of the authority. Except as otherwise

limited by this title, the authority shall have all of the powers

necessary or convenient to carry out the purposes and provisions of this

title, including without limiting the generality of the foregoing, the

power:

(a) To sue and be sued in all courts and to participate in actions and

proceedings, whether judicial, administrative, arbitrative or otherwise;

(b) To have a corporate seal, and to alter such seal at pleasure, and

to use it by causing it or a facsimile to be affixed or impressed or

reproduced in any other manner;

(c) To appoint officers, agents and employees, without regard to any

personnel or civil service law, rule or regulation of the state and in

accordance with guidelines adopted by the authority, prescribe their

duties and qualifications and fix and pay their compensation. By January

first, two thousand fourteen, the authority, through its governance

committee, shall amend such guidelines to require that staffing at the

authority is kept at levels only necessary to ensure that the authority

is able to meet obligations with respect to its bonds and notes and all

applicable statutes and contracts, and oversee the activities of the

service provider;

(d) To purchase, receive, take by grant, gift, devise, bequest or

otherwise, lease, or otherwise acquire, own, hold, improve, employ, use

and otherwise deal in and with, real or personal property whether

tangible or intangible, or any interest therein, within the state;

(e) To acquire real or personal property, whether tangible or

intangible, including without limitation property rights, interests in

property, franchises, obligations, contracts, and debt and equity

securities, by the exercise of the power of eminent domain; provided,

however, that any real property acquired by the exercise of the power of

eminent domain must be located within the service area;

(f) To sell, convey, lease, exchange, transfer, abandon or otherwise

dispose of, or mortgage, pledge or create a security interest in, all or

any of its assets, properties or any interest therein, wherever

situated;

(g) To purchase, take, receive, subscribe for, or otherwise acquire,

hold, make a tender offer for, vote, employ, sell, lend, lease,

exchange, transfer, or otherwise dispose of, mortgage, pledge or grant a

security interest in, use and otherwise deal in and with, bonds and

other obligations, shares or other securities (or interests therein)

issued by others, whether engaged in a similar or different business or

activity;

(h) To make and execute agreements, contracts and other instruments

necessary or convenient in the exercise of the powers and functions of

the authority under this title, including contracts with any person,

firm, corporation, municipality, state agency or other entity in

accordance with the provisions of section one hundred three of the

general municipal law, and all state agencies and all municipalities are

hereby authorized to enter into and do all things necessary to perform

any such agreement, contract or other instrument with the authority;

(i) To borrow money at such rate or rates of interest as the authority

may determine, issue its notes, bonds or other obligations to evidence

such indebtedness, and secure any of its obligations by mortgage or

pledge of all or any of its property or any interest therein, wherever

situated;

(j) To arrange for guarantees of its bonds, notes or other obligations

by the federal government or by any private insurer or otherwise, and to

pay any premiums therefor;

(k) To issue such bonds or notes or other obligations whether or not

the income therefrom is exempt from federal income taxation;

(l) To purchase bonds, notes or other obligations of the authority at

such price or prices as the authority may determine;

(m) To lend money, invest and reinvest its funds, and take and hold

real and personal property as security for the payment of funds so

loaned or invested;

(n) To procure insurance against any loss in connection with its

properties or operations in such amount or amounts and from such

insurers, including the federal government, as it may deem necessary or

desirable, and to pay any premiums therefor;

(o) To create or acquire one or more wholly owned subsidiaries in

accordance with section one thousand twenty-i of this title to carry out

all or any part of the purposes of this title;

(p) To negotiate and enter into agreements with trustees or receivers

appointed by United States bankruptcy courts or federal district courts

or in other proceedings involving adjustment of debts and authorize

legal counsel for the authority to appear in any such proceedings;

(q) To file a petition under chapter nine of title eleven of the

United States bankruptcy code or take other similar action for the

adjustment of its debts;

(r) To enter into agreements to purchase power from the power

authority of the state of New York, the state, any state agency, any

municipality, any private entity, or any other available source at such

price or prices as may be negotiated; provided, however, that the

authority shall not have the power to enter into any agreement or any

negotiation for the purchase of power from the dominion of Canada, or

any political subdivision, public authority or private corporation

therein; but may enter into an agreement with the power authority of the

state of New York for the purchase of such power;

(s) To enter into management agreements for the operation of all or

any of the property or facilities owned by the authority;

(t) To transfer any asset of the authority to one or more (i) private

utility or (ii) municipal gas or electric agency established pursuant to

article fourteen-A of the general municipal law, for such consideration

and upon such terms as the authority may determine to be in the best

interest of the gas and electric ratepayers in the service area;

(u) Rate plans. Subject to subdivision six of section one thousand

twenty-k of this title to fix rates and charges for the furnishing or

rendition of gas or electric power or of any related service at the

lowest level consistent with sound fiscal and operating practices of the

authority and which provide for safe and adequate service. In

implementing this power:

1. The authority and the service provider shall, on or before February

first, two thousand fifteen, submit for review to the department of

public service a three-year rate proposal for rates and charges to take

effect on or after January first, two thousand sixteen.

2. The authority and the service provider shall thereafter submit for

review to the department of public service any rate proposal that would

increase the rates and charges and thus increase the aggregate revenues

of the authority by more than two and one-half percent to be measured on

an annual basis; provided, however, that the authority may place such

rates and charges into effect on an interim basis, subject to

prospective rate adjustment; provided, further, that a final rate plan

issued by the authority that would not so increase such rates and

charges shall not be subject to the requirements of paragraph four of

this subdivision and shall be considered final for the purposes of

review under article seventy-eight of the civil practice law and rules.

The authority and/or the service provider may otherwise submit for

review to such department any rate proposal irrespective of its effect

on revenues.

2-a. The authority and the service provider shall not submit any rate

proposal that shall assess any fee, penalty or other charge of any kind

for the voluntary termination of electric service to any residential

customer for the purpose of utilizing alternative sources of electric

generation in excess of that charged to customers who terminate their

electric service for any other reason.

3. The authority shall not fix any final rates and charges proposed

that would not be subject to review by the department of public service

pursuant to paragraphs one and two of this subdivision until after

holding public hearings thereon upon reasonable public notice, with at

least one such hearing to be held each in the county of Suffolk and the

county of Nassau.

4. Any recommendations associated with a rate proposal submitted

pursuant to paragraphs one and two of this subdivision shall be provided

by the department of public service to the board of the authority

immediately upon their finalization by the department. Unless the board

of the authority makes a preliminary determination in its discretion

that any particular recommendation is inconsistent with the authority's

sound fiscal operating practices, any existing contractual or operating

obligations, or the provision of safe and adequate service, the board

shall implement such recommendations as part of its final rate plan and

such final determination shall be deemed to satisfy the requirements of

this subdivision and be considered final for the purposes of review

under article seventy-eight of the civil practice law and rules. The

board shall make any such preliminary determination of inconsistency

within thirty days of receipt of such recommendations, with notice and

the basis of such determination being provided to the department of

public service, and contemporaneously posted on the websites of the

authority and its service provider. The board shall thereafter, within

thirty days of such posting and with due advance notice to the public,

hold a public hearing with respect to its preliminary determination of

inconsistency. At such hearing, the department of public service shall

present the basis for its recommendations, the board shall present the

basis for its determination of inconsistency and the service provider

may present its position. The authority and the service provider may,

during the time period before such public hearing reach agreement with

the department on disputed issues. Within thirty days after such public

hearing, the board of the authority shall announce its final

determination and planned implementation with respect to any such

recommendations. The authority's final determination of inconsistency

shall be subject to any applicable judicial review proceeding, including

review available under article seventy-eight of the civil practice law

and rules.

(v) To enter upon any lands and within any building whenever in its

judgment it may be necessary for the purpose of making surveys and

examinations to accomplish any purpose authorized by this title;

(w) To enter into agreements to pay annual sums in lieu of taxes to

any municipality with respect to any real property which is owned by the

authority and is located in such municipality;

(x) To maintain an office or offices at such place or places in the

state as it may determine;

(y) To make any inquiry, investigation, survey or study which the

authority may deem necessary to enable it effectively to carry out the

provisions of this title and, for that purpose, to take and hear proofs

and testimony, and with the prior vote of a majority of the board which

majority vote shall include the vote of the chairman to compel the

attendance of witnesses and to require the production of records, books,

papers, accounts and other documents, including public records, and to

make copies thereof or extracts therefrom; and

(z) To adopt, revise, amend and repeal rules and regulations with

respect to its operations, properties and facilities as may be necessary

or convenient to carry out the purposes of this title, subject to the

provisions of the state administrative procedure act.

(aa) Notwithstanding any other provision of law to the contrary the

authority shall not undertake any project without the approval of the

public authorities control board created pursuant to article one-A of

this chapter. Each application to the public authorities control board

shall contain a project description and an explanation of why the

project meets the standards for project approval set forth in this

subdivision. The public authorities control board shall only approve a

project proposed by the authority upon its determination that:

1. the project is financially feasible as the standard is defined in

article one-A of this chapter;

2. the project does not materially adversely affect overall real

property taxes in the service area;

3. the project is anticipated to result generally in lower utility

rates in the service area; and

4. the project will not materially adversely affect overall real

property taxes or utility rates in other areas of the state of New York.

(bb) Comprehensive and regular management and operations audits. 1.

The authority and the service provider shall cooperate in the

undertaking and completion of a regular and comprehensive management and

operations audit conducted pursuant to the requirements of this

subdivision and paragraph (d) of subdivision three of section three-b of

the public service law. Such audit shall review and evaluate the overall

operations and management of the authority and service provider,

including such operations and management in the context of the

authority's duty to set rates at the lowest level consistent with

standards and procedures provided in subdivision (u) of this section,

and include, but not be limited to: (i) the service provider's

construction and capital program planning in relation to the needs of

customers for reliable service; (ii) the overall efficiency of the

authority's and service provider's operations; (iii) the manner in which

the authority is meeting its debt service obligations; (iv) the

authority's Fuel and Purchased Power Cost Adjustment clause and recovery

of costs associated with such clause; (v) the authority's and service

provider's annual budgeting procedures and process; (vi) the

application, if any, of the performance metrics designated in the

operations services agreement and the accuracy of the data relied upon

with respect to such application; and (vii) the authority's compliance

with debt covenants.

2. The department of public service shall notify the authority that

said department is in the process of initiating a comprehensive

management and operations audit as described in paragraph one of this

subdivision in a manner that ensures the timeliness of such audit, and

in accordance with the following timeframe: the first comprehensive

management and operations audit shall be initiated as of the effective

date of chapter eight of the laws of two thousand twelve and undertaken

in a manner and to an extent that is practicable in the context of the

authority's transition to a new management service structure; the second

comprehensive management and operations audit shall be initiated no

later than December fifteenth, two thousand sixteen; and all additional

comprehensive management and operations audits shall be initiated at

least once every five years thereafter. Within a reasonable time after

such notification to the authority, said department or the independent

auditor retained by the authority to undertake such audit shall hold

public statement hearings, with proper notice, in both Nassau and

Suffolk counties for the purpose of receiving both oral and written

comments from the public on matters related to such audit as described

in paragraph one of this subdivision.

3. Each such audit shall be completed within eighteen months of

initiation absent an extension for good cause shown by the department of

public service or the independent auditor under contract with the

authority with notice of such extension to the governor, the temporary

president of the senate, the speaker of the assembly, and the chairs of

the authority and the department of public service. Such audit shall be

provided to the board of the authority immediately upon its completion.

The department of public service shall provide notice of completion of

such audit to the governor, the temporary president of the senate, the

speaker of the assembly, and the minority leaders of the senate and

assembly, and the authority, upon receipt of such audit, shall post a

copy of such audit, including findings and recommendations, on its

website and the website of the service provider. Unless the board of the

authority makes a preliminary determination that any particular finding

or recommendation contained in such audit is inconsistent with the

authority's sound fiscal operating practices, any existing contractual

or operating obligation, or the provision for safe and adequate service,

the board shall implement or cause its service provider to implement

such findings and recommendations in accordance with the timeframe

specified under such audit.

4. The board of the authority shall make any preliminary determination

of inconsistency with respect to any such finding or recommendation

within thirty days of receipt of the audit, with notice and the basis of

such determination being provided to the department of public service.

Such notice and basis shall be posted contemporaneously on the

authority's website and the website of the service provider and the

board shall, within thirty days of such posting and with due advance

notice to the public, hold a public hearing with respect to its

preliminary determination of inconsistency. At such hearing the

department of public service or the independent auditor responsible for

undertaking such audit shall present the basis for its findings and

recommendations and the board shall present the basis for its

determination of inconsistency and the service provider may present is

position. The authority, service provider and auditor may during the

time period prior to such public hearing reach agreement on disputed

issues. Within thirty days after such public hearing, the board of the

authority shall announce its final determination and planned

implementations with respect to any such findings and/or

recommendations. The authority's final determination of inconsistency

shall be subject to any applicable judicial review proceeding, including

review available under article seventy-eight of the civil practice law

and rules.

5. Notwithstanding the foregoing, in the event that a comprehensive

and regular management and operations audit as conducted in accordance

with this subdivision indicates a finding of fraud, abuse or

mismanagement by a service provider of the authority, and upon a finding

by the public service commission that reasonable cause exists for the

basis of such indication, the public service commission may order that

any recommendations contained in the regular management and operations

audit be implemented. The public service commission may also provide in

their order, the date in which the recommendations be fully implemented.

Failure to comply with any such order can result in the imposition of a

civil penalty by the public service commission against the service

provider.

(cc) To prepare an emergency response plan pursuant to this

subdivision. 1. The service provider shall, in consultation with the

authority, prepare and maintain an emergency response plan (i) to assure

the reasonably prompt restoration of service in the case of an emergency

event, defined for purposes of this subdivision as an event where

widespread outages have occurred in the authority's service territory

due to a storm or other causes beyond the control of the authority and

the service provider, (ii) consistent with the requirements of paragraph

(a) of subdivision twenty-one of section sixty-six of the public service

law and any regulations and orders adopted thereto, and (iii)

establishing the separate responsibilities of the authority and service

provider. Such emergency response plan shall include plans setting forth

how the communication and coordination of efforts between the authority,

service provider, authority employees, service provider employees,

authority company crews, service provider company crews, mutual aid

crews, other utilities, local governments and any service provider or

other entity performing services to assist the authority shall occur.

Such emergency response plan shall include identification of and

outreach plans for customers who have documented their need for

essential electricity for medical needs, which shall include but not be

limited to, apnea monitors for infants, cuirass respirators,

hemodialysis machines, intravenous feeding machines, intravenous medical

infusion machines, oxygen concentrators, positive pressure respirators,

respirators/ventilators, rocking bed respirators, suction machines, and

tank type respirators.

2. On or before February third, two thousand fourteen, the authority

and service provider shall submit an emergency response plan to the

department of public service for review. Contemporaneously with such

submission, the authority shall provide notice of such proposed plan to

the secretary of state for publication in the state register, the

authority and service provider each shall post such plan on their

websites and otherwise make such plan available for review in-person,

and afford members of the public an opportunity to submit written

comments and oral comments pursuant to at least one hearing to be held

each in the county of Suffolk and the county of Nassau. Such written

comments must be submitted by March fourteenth, two thousand fourteen.

The authority and service provider shall provide a copy of all written

comments they receive and a transcript of such public hearings to the

department of public service for its consideration in reviewing the

emergency response plan. The department shall provide any

recommendations to the authority and service provider with respect to

such plan on or before April fifteenth, two thousand fourteen. Such plan

must be made final by June second, two thousand fourteen. For each year

thereafter, the service provider shall submit an emergency response plan

to the department of public service, and such department shall provide

its recommendations, in accordance with a schedule to be established by

such department and that is consistent with the schedule associated with

such department's review of similar such plans provided by electric

corporations pursuant to subdivision twenty-one of section sixty-six of

the public service law.

3. By June second, two thousand fourteen, and by June first annually

thereafter, the authority and service provider shall jointly certify to

the department of homeland security and emergency services that the

emergency response plan ensures, to the greatest extent feasible, the

timely and safe restoration of energy services after an emergency

consistent with the requirements of paragraph (a) of subdivision

twenty-one of the public service law and the department's

recommendations. The filing of such emergency response plan shall also

include a copy of all written mutual assistance agreements among

utilities. The authority and service provider shall file with the county

executives of Nassau and Suffolk county and the mayor of the city of New

York the most recent version of the emergency response plan, and make

sure that such amended versions are timely filed.

4. Starting in calendar year two thousand fourteen, the service

provider annually shall undertake at least one drill to implement

procedures to practice its emergency response plan. The service provider

shall notify and allow participation in such drill of all appropriate

municipal emergency responders and officials.

5. If, during an emergency event, electric service is not restored in

three days, the service provider shall within sixty days from the date

of full restoration file with the department a report constituting a

review of all aspects of the preparation and system restoration

performance during the event, and shall thereafter take into

consideration any recommendations made by the department associated with

such review.

(dd) On or before January first, two thousand fifteen, and by January

first of each calendar year thereafter, to submit for review to the

department of public service a report detailing the service provider's

planned capital expenditures.

(ee) On or before July first, two thousand fourteen, and annually

thereafter, to submit for review to the department of public service any

proposed plan related to implementing energy efficiency measures,

distributed generation or advanced grid technology programs for the

purpose provided pursuant to paragraph (g) of subdivision three of

section three-b of the public service law.

(ff) To assist and cooperate with the department of public service

with respect to any review undertaken pursuant to section three-b of the

public service law, including providing the department with reasonable

access to all facilities and premises owned or operated by the authority

or its service provider, allowing review of all books and records of the

authority and its service provider, providing copies of requested

documents, allowing interviews of all appropriate personnel, and

responding in a reasonable and timely manner to any inquiries or

reporting requests made by the department; provided, however, that the

obligations set forth in this subdivision shall not extend to affiliates

of the service provider.

(gg) Renewable generation and energy efficiency programs. 1. The

authority in coordination with the service provider, the power authority

of the state of New York and the New York state energy research and

development authority shall, to the extent the authority's rates are

sufficient to provide safe and adequate transmission and distribution

service, and the measures herein, undertake actions to design and

administer renewable energy and energy efficiency measures in the

service area, with the goal of continuing and expanding such measures

that cost-effectively reduce system-wide peak demand, minimize long-term

fuel price risk to rate payers, lower emissions, improve environmental

quality, and seek to meet New York state climate change and

environmental goals. Such actions shall also include implementation of

any renewable energy competitive procurement or feed-in-tariff programs

that were approved by the authority as of the effective date of the

chapter of the laws of two thousand thirteen which added this

subdivision.

2. The service provider shall consider, consistent with maintaining

system reliability, renewable generation and energy efficiency program

results and options in establishing capital plans.

(hh) Starting in calendar year two thousand fifteen, the authority and

the service provider shall submit to the department of public service

for review, any and all data, information and reports which set forth

the service provider's actual performance related to the metrics in the

operations services agreement, including the authority's evaluation

thereof, no less than forty-five days prior to the authority's

determination of the service provider's annual incentive compensation.

(ii) The service provider shall assist and cooperate with the

department of public service with respect to providing any data or

information necessary for the department to post a compensation

statement for the service provider in accordance with subdivision three

of section one hundred eleven-a of the public service law.

* (jj) As deemed feasible and advisable by the trustees, to enter into

contracts with the power authority of the state of New York for the

provision of bill credits generated by the production of renewable

energy by a renewable energy system developed, constructed, owned, or

contracted for by the power authority of the state of New York under the

renewable energy access and community help program established pursuant

to subdivision twenty-seven-b of section one thousand five of this

article and, unless such end-use electricity consumers opt out, to

provide such bill credits to low-income or moderate-income end-use

electricity consumers in disadvantaged communities, including such

end-use electricity customers who have or who reside in buildings that

have on-site net-metered generation or who participate in a community

choice aggregation or community distributed generation project.

* NB There are 2 sb (jj)'s

* (jj) The authority and its service provider shall permit a

residential customer to designate a third party to receive notice of the

total amount due or past due on all bills, the amounts of any payments

paid by or on behalf of such residential customer, and copies of all

notices relating to termination of service and notices relating to

collection of amounts due sent to such residential customer, provided

that the designated third party indicates in writing a willingness to

receive such notices, and provided further, where a residential customer

opts for third-party notifications, such residential customer may opt to

continue to receive such notices.

* NB There are 2 sb (jj)'s

(kk) The authority and its service provider shall permit a landlord,

upon written request of both the landlord and tenant, to designate a

third party to be notified of all requests for discontinuance of service

to units occupied by such tenant, provided that the designated third

party indicates in writing a willingness to receive such notices, and

provided further, where the tenant and landlord customers opt for

third-party notifications, such tenant and landlord customers may opt to

continue to receive such notices.

* NB There are 2 § 1020-f's