N.Y. Public Authorities Law § 1266-c: Transit projects

§ 1266-c. Transit projects. 1. Subject to the provisions of this

section, the authority is hereby authorized, upon the request of the New

York city transit authority and upon such terms and conditions as shall

be agreed to by the authority (i) to plan, design, acquire, construct,

reconstruct, rehabilitate and improve facilities, equipment, devices and

appurtenances, and property or property rights constituting or to

constitute part of, or used or to be used in connection with the

operation of any transit facility now or hereafter owned or operated by

the New York city transit authority or any of its subsidiaries (each of

the foregoing activities and programs being referred to in this section

as a "transit project"), (ii) to finance the costs of a transit project

by the issuance of its notes, bonds or lease obligations, (iii) upon the

completion of any transit project or part thereof, to cause the same to

be transferred, leased or subleased to the New York city transit

authority or its designated subsidiary or other designee, for

consideration. The terms "facilities", "equipment", "devices and

appurtenances", "property" or "property rights" and "transit facility"

shall have the meanings given to such terms from time to time in section

twelve hundred of this article. The authority shall have no obligation

to operate or, except as may otherwise be provided in any lease to which

it may be a party as hereinafter provided, repair or maintain any

transit project or part thereof subsequent to its completion nor shall

it be liable to the transferee, lessee or sublessee by reason of any

warranty, express or implied, in respect thereof. Warranties furnished

in connection with such transit project shall be assignable and assigned

as directed by the New York city transit authority and approved by the

authority.

2. In connection with any transit project, and in order to effectuate

the purposes of this section, the authority shall, subject to the

provisions of this section, have all of the powers provided elsewhere in

this title, and, in addition, the authority may:

(a) issue its notes or bonds to finance all or any part of the costs

of a transit project;

(b) finance all or any part of the costs to the authority or to any

other person or entity, public or private, of such transit project

through, or accompanied by, a leasing of such project or any part

thereof by such person or entity to the authority or through or

accompanied by a sale by the authority to any such person or entity and

leaseback to the authority, in each case for subleasing to the New York

city transit authority, its designated subsidiary or other designee for

consideration, except that such leasing or leaseback from such person or

entity may be directly to the New York city transit authority or its

designated subsidiary or other designee with the consent of the

authority;

(c) issue its notes or bonds to defease the lien of, refund or

otherwise repay any outstanding notes, bonds or other obligations of the

New York city transit authority which in the judgment of the authority

would otherwise delay, impede or prevent its financing a transit

project;

(d) accept the notes, bonds, lease, sublease and other contractual

obligations of the New York city transit authority and any of its

designated subsidiaries in payment for a transfer, lease or sublease of

a transit project;

(e) accept from the New York city transit authority or its designated

subsidiary or from the city of New York, acting by its mayor alone, a

transfer of title to or the use, occupancy, control or possession of any

real or personal property (or any interest therein) needed or useful for

or in connection with any transit project;

(f) obtain security for the payment by the New York city transit

authority or its designated subsidiary of its notes, bonds, lease,

sublease or other contractual obligations, including a pledge of all or

any part of any of their revenues, which pledge may contain covenants

with respect to the charging and fixing of fares, fees and rentals, the

use and disposition of such fares, fees, rentals and other revenues, and

the setting aside of reserves therefrom;

(g) with the consent of the New York city transit authority or its

designated subsidiary, use, with or without compensation, its agents,

employees and facilities; and

(h) apply for, accept, enter into contracts for, administer and

disburse any federal, state or local aid or assistance, subject to the

terms and conditions thereof, which may be available for any transit

project.

3. All of the provisions of this title not inconsistent with the

provisions of this section shall be applicable with respect to any

bonds, notes or lease obligations of the authority issued or entered

into to finance any transit project, or to defease the lien of, refund

or otherwise repay outstanding bonds, notes or other obligations of the

New York city transit authority, subject to the following conditions:

(a) such bonds and notes shall be payable as to principal, redemption

premium, if any, and interest and such other obligations shall be

payable, all in the manner more particularly provided by the authority

in the resolution under which the same shall be authorized to be issued;

(b) such lease obligations shall be non-recourse obligations limited

to the recovery of the leased property by the lessor and as to the

payments of sums of money coming due thereunder, to proceedings against

the sublessee under any underlying sublease or pursuant to any pledge or

assignment given to secure sums payable under such underlying sublease;

(c) no bonds or notes of the authority shall be issued for the purpose

of defeasing the lien of, refunding or otherwise repaying outstanding

bonds, notes or other obligations of the New York city transit authority

unless (i) the city of the New York shall have entered into an agreement

on terms satisfactory to the authority to make periodic payments to the

New York city transit authority, and (ii) the New York city transit

authority shall have entered into an agreement on terms satisfactory to

the authority to make periodic payments to the authority, in each case

sufficient to pay, when due, the principal, redemption premium, if any,

and interest upon the bonds or notes of the authority issued to effect

such defeasance, refunding or repayment;

(d) notwithstanding and in addition to any provisions for the

redemption of such bonds or notes which may be contained in any contract

with the holders thereof, the city of New York may, upon furnishing

sufficient funds therefor, require the authority to redeem as a whole

any issue of such bonds or notes at the time or times and at the place

or places and in accordance with the terms upon which such bonds or

notes are redeemable; and

(e) the city of New York shall not be liable on such bonds or notes,

and such bonds or notes shall not be a debt of the city of New York, and

shall contain on the face thereof a statement to such effect.

4. The authority shall not undertake any transit project unless the

New York city transit authority or the subsidiary for whose benefit the

transit project is to be undertaken, or both, shall pay or agree to pay,

in the form of a bond, note, lease, sublease or other contractual

obligation, in a manner and on terms and conditions satisfactory to the

authority, any portion of the costs to the authority of such transit

project and the financing thereof which is not paid to the authority

from any federal, state or local aid or assistance or which is not

payable from any other moneys made available or payable to the authority

by others for such project.

5. Neither the provisions of section one hundred ninety-seven-c of the

New York city charter, relating to a uniform land use review procedure,

nor the provisions of any other local law of the city of New York of

like or similar tenor or import shall apply (i) to the acquisition of

any real property (or any interest therein) for the purposes of any

transit project by the city or by the New York city transit authority or

any of its subsidiaries; (ii) to the subsequent transfer of any real

property (or interest therein) so acquired to the authority or its

designee for the purposes of such project or to the transfer to the

authority or its designee for such purposes of any real property (or

interest therein) then owned by the city or by the New York city transit

authority or any such subsidiary; nor (iii) to the transfer to the

authority or its designee for such purposes of the right of use,

occupancy, control or possession of any real property (or interest

therein), whether presently owned or hereafter acquired by the city or

by the New York city transit authority or any such subsidiary; provided

in each such case, however, that if at the time of such proposed

acquisition or transfer the real property which is the subject of such

acquisition or transfer is not then being utilized for a transit or

transportation purpose or is not an insubstantial addition to such

property contiguous thereto; (a) the authority proposing to acquire or

receive such property shall, unless a submission with respect to such

property has previously been made and approved as herein provided,

submit to the community board for the community district in which such

property is located, data with respect to the proposed use of such

property and to the design of any facility proposed to be constructed

thereon; (b) such community board shall inform the board of estimate of

the city of New York, with copies to the city planning commission of the

city of New York and the proposing authority, of its views and

recommendations with respect thereto within forty-five days of such

submission, and if the community board shall fail to so inform the board

of estimate within such period it shall be deemed to have recommended

the proposal; and (c) the board of estimate shall, within forty-five

days of the recommendation of the community board, approve or disapprove

such acquisition or transfer, and if the board of estimate shall fail to

act within such period it shall be deemed to have approved the same.

6. In its performance of any transit project, the authority shall not

be deemed the agent or instrumentality of the city of New York or the

New York city transit authority or any of its subsidiaries

notwithstanding the fact that title to any real or personal property (or

any interest therein) which is the subject of or is a part of such

project is held by or upon completion of such project is to be

transferred to such other entity. In its performance of any transit

project, however, the provisions of section twelve hundred nine of this

chapter shall apply to the authority as if it were the "authority"

referred to therein.

7. The authority, in addition to the powers provided elsewhere in this

title, shall possess all of the powers, rights and privileges of the New

York city transit authority or its designated subsidiary in connection

with the undertaking by the authority of any transit project. The

authority, upon suitable notice to and an offer to consult with an

officer designated by the city of the New York, may occupy the streets

of the city of New York for the purpose of doing any work over or under

the same in connection with any transit project without the consent of

or payment to such city.

8. After the transfer, transfer back, lease or sublease to the New

York city transit authority or its designated subsidiary or other

designee of any transit project or part thereof, actions for damages for

injuries to real or personal property or for the destruction thereof, or

for personal injuries or death, based upon the use, condition or state

of such project or part thereof may not be instituted against the

authority, which shall have no liability or responsibility to the

transferee, lessee or sublessee or to third parties therefor.

9. Except as the authority shall otherwise agree, title to any transit

project or any part thereof or interest therein which shall have been

transferred, leased or subleased to the New York city transit authority

or its designated subsidiary, shall remain in such transferee, lessee or

sublessee any provision of title nine of this article or of any lease or

other agreement entered into under the provisions of that title to the

contrary notwithstanding.

10. The providing of any transit project shall not relieve the city of

New York of its obligations under law and by lease to pay the capital

costs of the New York city transit authority or its subsidiaries.

11. No transit project to be constructed upon real property

theretofore used for a transit or transportation purpose, or on an

insubstantial addition to such property contiguous thereto, which will

not change in a material respect the general character of such prior

transit or transportation use, nor any acts or activities in connection

with such project, shall be subject to the provisions of article eight,

nineteen, twenty-four or twenty-five of the environmental conservation

law, or to any local law or ordinance adopted pursuant to any such

article. Nor shall any transit project or any acts or activities in

connection therewith taken by any person or entity, public or private,

pursuant to this section be subject to the provisions of article eight

of the environmental conservation law if such project, acts or

activities require the preparation of a statement under or pursuant to

any federal law or regulation as to the environmental impact thereof.

12. The provisions of this section and of all agreements undertaken by

the New York city transit authority in accordance therewith shall in all

respects be subject to the rights of the holders of any outstanding

bonds or notes of such authority.

13. a. All contracts for design, construction, services and materials

pursuant to this title of whatever nature and all documents soliciting

bids or proposals therefor shall contain or make reference to the

following provisions:

(i) The contractor will not discriminate against employees or

applicants for employment because of race, creed, color, national

origin, sex, age, disability, or marital status, and will undertake or

continue existing programs of affirmative action to ensure that minority

group persons and women are afforded equal opportunity without

discrimination. Such programs shall include, but not be limited to,

recruitment, employment, job assignment, promotion, upgrading, demotion,

transfer, layoff, termination, rates of pay or other forms of

compensation, and selections for training or retraining, including

apprenticeship and on-the-job training.

(ii) At the request of the New York city transit authority, the

metropolitan transportation authority, and their subsidiaries

(hereinafter referred to as the authority), the contractor shall request

each employment agency, labor union, or authorized representative of

workers with which it has a collective bargaining or other agreement or

understanding and which is involved in the performance of the contract

with the authority to furnish a written statement that such employment

agency, labor union or representative shall not discriminate because of

race, creed, color, national origin, sex, age, disability or marital

status and that such union or representative will cooperate in the

implementation of the contractor's obligations hereunder.

(iii) The contractor will state, in all solicitations or

advertisements for employees placed by or on behalf of the contractor in

the performance of the contract with the authority, that all qualified

applicants will be afforded equal employment opportunity without

discrimination because of race, creed, color, national origin, sex, age,

disability or marital status. (iv) The contractor will include the

provisions of subparagraphs (i) through (iii) of this paragraph in every

subcontract or purchase order in such a manner that such provisions will

be binding upon each subcontractor or vendor as to its work in

connection with the contract with the authority.

b. The authority shall establish procedures and guidelines to ensure

that contractors and subcontractors undertake programs of affirmative

action and equal employment opportunity as required by this subdivision.

Such procedures may require after notice in a bid solicitation, the

submission of an affirmative action program prior to the award of any

contract, or at any time thereafter, and may require the submission of

compliance reports relating to the operation and implementation of any

affirmative action program adopted hereunder. The authority may take

appropriate action including contractual sanctions for non-compliance to

effectuate the provisions of this subdivision and shall be responsible

for monitoring compliance with this title.

14. (a) (i) In the performance of projects pursuant to this title

minority and women-owned business enterprises shall be given the

opportunity for meaningful participation. The authority provided for in

this title shall establish measures and procedures to secure meaningful

participation and identify those contracts and items of work for which

minority and women-owned business enterprises may best bid to actively

and affirmatively promote and assist their participation in the

projects, so as to facilitate the award of a fair share of contracts to

such enterprises; provided, however, that nothing in this title shall be

construed to limit the ability of the authority to assure that qualified

minority and women-owned business enterprises may participate in the

program. For purposes hereof, minority business enterprise shall mean

any business enterprise which is at least fifty-one per centum owned by,

or in the case of a publicly owned business, at least fifty-one per

centum of the stock of which is owned by citizens or permanent resident

noncitizens who are Black, Hispanic, Asian or American Indian, Pacific

Islander or Alaskan natives and such ownership interest is real,

substantial and continuing and have the authority to independently

control the day to day business decisions of the entity for at least one

year; and women-owned business enterprise shall mean any business

enterprise which is at least fifty-one per centum owned by, or in the

case of a publicly owned business, at least fifty-one per centum of the

stock of which is owned by citizens or permanent resident noncitizens

who are women, and such ownership interest is real, substantial and

continuing and have the authority to independently control the day to

day business decisions of the entity for at least one year.

The provisions of this paragraph shall not be construed to limit the

ability of any minority or women-owned business enterprise to bid on any

contract.

(ii) In the implementation of this subdivision, the authority shall

consider compliance by any contractor with the requirements of any

federal, state, or local law concerning minority and women-owned

business enterprises, which may effectuate the requirements of this

subdivision. If the authority determines that by virtue of the

imposition of the requirements of any such law, in respect to capital

project contracts, the provisions thereof duplicate or conflict with

such law, the authority may waive the applicability of this subdivision

to the extent of such duplication or conflict.

(iii) Nothing in this subdivision shall be deemed to require that

overall state and federal requirements for participation of minority and

women-owned business enterprises in programs authorized under this title

be applied without regard to local circumstances to all projects or in

all communities.

(b) In order to implement the requirements and objectives of this

subdivision, the authority shall establish procedures to monitor the

contractors' compliance with provisions hereof, provide assistance in

obtaining competing qualified minority and women-owned business

enterprises to perform contracts proposed to be awarded, and take other

appropriate measures to improve the access of minority and women-owned

business enterprises to these contracts.

15. (a) In connection with the performance of projects pursuant to

this section, the authority shall, to the extent practicable and not

inconsistent with any federal law, regulation or requirement, promote

the meaningful participation of small business and New York state

business enterprises in the provision of goods and services that are

produced or manufactured in New York state as part of procurements

undertaken by the authority.

(b) The authority shall within one hundred eighty days after the

effective date of this subdivision develop, and review annually

thereafter, a plan to effect the purposes of this subdivision.