N.Y. Public Authorities Law § 1045-i: Agreement among the water board, the city and the authority for the provision of water projects

§ 1045-i. Agreement among the water board, the city and the authority

for the provision of water projects. 1. The authority, the water board

and the city, acting either by the mayor alone or by resolution of the

board of estimate of the city, may enter into agreements for the purpose

of providing for the construction and financing of a water project.

2. Any such agreements (i) shall describe in sufficient detail for

reasonable identification the particular water project to be financed in

whole or in part by the authority, (ii) shall describe the plan for the

financing of the cost of the construction of such water project,

including the amount, if any, to be provided by the water board and the

source or sources thereof, (iii) shall set forth the method by which and

by whom and the terms and conditions upon which moneys provided by the

authority shall be disbursed, (iv) may require, in the discretion of the

authority, the payment to the authority of the proceeds of any state and

federal grants available to the water board, (v) shall provide for the

establishment of user fees, rates, rents and other charges and the

charging and collection thereof by the water board for the use of, or

services furnished, rendered or made available by such system such as to

provide that such board receive revenues at least sufficient, together

with other revenues of the board, if any, to meet the requirements of

subdivision one of section one thousand forty-five-j of this title,

provided that revenues received by such board shall be deposited in a

special fund established pursuant to this title and disbursed to, and

upon certification of, the authority, (vi) may provide for the transfer

by the city to the water board pursuant to section one thousand

forty-five-h of this title of ownership of the sewerage system or water

system, or both, as the case may be, of which such project will form a

part by the city, (vii) shall provide for the construction and

completion of such water project by the city and for the operation,

maintenance and repair thereof as an integrated part of the system of

which such water project forms a part, subject to such terms and

conditions, not inconsistent with this title, which may be in the public

interest and necessary or desirable properly and adequately to secure

the holders of bonds of the authority, provided, however, all contracts

for public work and all purchase contracts shall be awarded by the city

as provided by law for the award of such contracts by the city and that

all contracts for construction shall be let in accordance with the

provisions of state law pertaining to prevailing wages, labor standards

and working hours. Except as otherwise provided in section two hundred

twenty-two of the labor law, when the entire cost of constructing a

building as part of any water project shall exceed three million

dollars, the city shall prepare separate specifications for the

following three subdivisions of the work to be performed: (a) plumbing

and gas fitting; (b) steam heating, hot water heating, ventilating and

air conditioning apparatus; and (c) electric wiring and standard

illuminating fixtures, (viii) shall provide for the discontinuance or

disconnection of the supply of water or the provision of sewerage

service, or both, as the case may be, for non-payment of fees, rates,

rents or other charges therefor imposed by the water board, provided

such discontinuance or disconnection of any supply of water or the

provision of sewerage service, or both, as the case may be, shall not be

carried out except in the manner and upon the notice as is required of a

waterworks corporation pursuant to subdivisions three-a, three-b and

three-c of section eighty-nine-b and section one hundred sixteen of the

public service law, and (ix) in the discretion of the authority, require

reports concerning the project from the water board to the authority and

the city.

2-a. Each bidder on a public work contract, where the preparation of

separate specifications is not required, shall submit with its bid a

separate sealed list that names each subcontractor that the bidder will

use to perform work on the contract, and the agreed-upon amount to be

paid to each, for: (a) plumbing and gas fitting, (b) steam heating, hot

water heating, ventilating and air conditioning apparatus and (c)

electric wiring and standard illuminating fixtures. After the low bid is

announced, the sealed list of subcontractors submitted with such low bid

shall be opened and the names of such subcontractors shall be announced,

and thereafter any change of subcontractor or agreed-upon amount to be

paid to each shall require the approval of the public owner, upon a

showing presented to the public owner of legitimate construction need

for such change, which shall be open to public inspection. Legitimate

construction need shall include, but not be limited to, a change in

project specifications, a change in construction material costs, a

change to subcontractor status as determined pursuant to paragraph (e)

of subdivision two of section two hundred twenty-two of the labor law,

or the subcontractor has become otherwise unwilling, unable or

unavailable to perform the subcontract. The sealed lists of

subcontractors submitted by all other bidders shall be returned to them

unopened after the contract award.

3. If the city executes an agreement pursuant to this section,

relating to the financing of water projects by revenue bonds, it shall

have and shall be deemed to have annulled its power to levy user fees,

rents and other charges on participating properties or customers for the

cost of financing, operating and maintaining such water or sewerage

system or both, as the case may be, under its jurisdiction until all

bonds of the authority shall have been paid or discharged in accordance

with the agreement and the resolution of the authority authorizing such

bonds. If the city has outstanding general obligation bonds issued for

acquiring or constructing water or sewerage facilities, whether the

bonds are payable from revenues, special assessments, or taxes, it may

authorize the authority pursuant to the agreement to issue its revenue

bonds under this title for the purpose of retiring the outstanding

bonds.

4. No such agreement shall be executed until the city and water board

shall have held a public hearing at which users of the water system or

the sewerage system or the water system and sewerage system, as the case

may be, shall have had opportunity to be heard concerning the proposed

provisions thereof. Notice of such hearing shall be published at least

thirty days in advance in the state register, in the official newspaper

or newspapers of the city, and in at least one newspaper of general

circulation in each of the areas served by the water system or sewerage

system, as the case may be.

5. Such agreement shall be effective upon the issuance by the

authority of notes and bonds to finance the cost of constructing water

projects of the city.

6. Any such agreement may be amended, revised or extended by

supplemental agreements authorized and executed in the same manner as

the original agreement, provided that any such supplemental agreement

shall not be inconsistent with the provisions of this title.

7. (a) Following the execution of the agreement by and between the

authority, the water board and the city pursuant to this section, the

clerk of the city, shall publish a notice in substantially the following

form: "Notice is hereby given that the city of New York has

on day of entered into an agreement with the New

York city municipal water finance authority in relation to the

construction and financing of (here insert a brief description of the

sewerage or water facility or facilities to which such agreement

relates) pursuant to the New York City Municipal Water Finance Authority

Act for the purpose of placing its water or sewerage system or water and

sewerage system, as the case may be, on an independent basis, imposing

fees and rents on water or sewerage system users, or both, which,

together with other revenues available for such purpose, if any, are

sufficient to pay to the authority debt service on bonds issued by the

authority pursuant to the agreement and for operation and maintenance of

the facility (title to which is transferred to the water board pursuant

to the agreement). Such agreement in general terms provides (here insert

a brief summary of the substantive provisions of such agreement). A copy

of the complete agreement is on file for public inspection in the office

of the clerk of the city where the same may be examined by any

interested person during regular business hours. The validity of this

agreement may be hereafter contested only upon the ground or grounds

that: (i) such agreement violates, or the performance of any provision

thereof by any party thereto would violate, the provisions of any law or

the state constitution, or (ii) the provisions of law which should have

been complied with in relation to the authorization and execution were

not substantially complied with, and in any event an action, suit or

proceeding is commenced within sixty days after the date of this notice.

(Clerk or other official

designated by the city council

of the city of New York)"

(b) The publication authorized by this subdivision shall be in the

state register and in the official newspaper or newspapers of the city.

(c) After the expiration of the sixty day period set forth in such

notice the validity of such agreement shall be conclusively presumed and

the validity thereof shall not thereafter be questioned by either a

party plaintiff or a party defendant and no court shall have

jurisdiction in any action, suit or proceeding contesting such validity.

(d) Neither any error or omission in the notice of publication

provided for in this subdivision shall affect or impair the validity of

an agreement executed pursuant to this section so long as the notice

substantially conforms to the provisions of this section.