§ 1020-F — General powers of the authority

* § 1020-f. General powers of the authority. Except as otherwise\nlimited by this title, the authority shall have all of the powers\nnecessary or convenient to carry out the purposes and provisions of this\ntitle, including without limiting the generality of the foregoing, the\npower:\n (a) To sue and be sued in all courts and to participate in actions and\nproceedings, whether judicial, administrative, arbitrative or otherwise;\n (b) To have a corporate seal, and to alter such seal at pleasure, and\nto use it by causing it or a facsimile to be affixed or impressed or\nreproduced in any other manner;\n (c) To appoint officers, agents and employees, without regard to any\npersonnel or civil service law, rule or regulation of the state and in\naccordance with guidelines adopted by the authority, prescribe their\nduties and qualifications and fix and pay their compensation. By January\nfirst, two thousand fourteen, the authority, through its governance\ncommittee, shall amend such guidelines to require that staffing at the\nauthority is kept at levels only necessary to ensure that the authority\nis able to meet obligations with respect to its bonds and notes and all\napplicable statutes and contracts, and oversee the activities of the\nservice provider;\n (d) To purchase, receive, take by grant, gift, devise, bequest or\notherwise, lease, or otherwise acquire, own, hold, improve, employ, use\nand otherwise deal in and with, real or personal property whether\ntangible or intangible, or any interest therein, within the state;\n (e) To acquire real or personal property, whether tangible or\nintangible, including without limitation property rights, interests in\nproperty, franchises, obligations, contracts, and debt and equity\nsecurities, by the exercise of the power of eminent domain; provided,\nhowever, that any real property acquired by the exercise of the power of\neminent domain must be located within the service area;\n (f) To sell, convey, lease, exchange, transfer, abandon or otherwise\ndispose of, or mortgage, pledge or create a security interest in, all or\nany of its assets, properties or any interest therein, wherever\nsituated;\n (g) To purchase, take, receive, subscribe for, or otherwise acquire,\nhold, make a tender offer for, vote, employ, sell, lend, lease,\nexchange, transfer, or otherwise dispose of, mortgage, pledge or grant a\nsecurity interest in, use and otherwise deal in and with, bonds and\nother obligations, shares or other securities (or interests therein)\nissued by others, whether engaged in a similar or different business or\nactivity;\n (h) To make and execute agreements, contracts and other instruments\nnecessary or convenient in the exercise of the powers and functions of\nthe authority under this title, including contracts with any person,\nfirm, corporation, municipality, state agency or other entity in\naccordance with the provisions of section one hundred three of the\ngeneral municipal law, and all state agencies and all municipalities are\nhereby authorized to enter into and do all things necessary to perform\nany such agreement, contract or other instrument with the authority;\n (i) To borrow money at such rate or rates of interest as the authority\nmay determine, issue its notes, bonds or other obligations to evidence\nsuch indebtedness, and secure any of its obligations by mortgage or\npledge of all or any of its property or any interest therein, wherever\nsituated;\n (j) To arrange for guarantees of its bonds, notes or other obligations\nby the federal government or by any private insurer or otherwise, and to\npay any premiums therefor;\n (k) To issue such bonds or notes or other obligations whether or not\nthe income therefrom is exempt from federal income taxation;\n (l) To purchase bonds, notes or other obligations of the authority at\nsuch price or prices as the authority may determine;\n (m) To lend money, invest and reinvest its funds, and take and hold\nreal and personal property as security for the payment of funds so\nloaned or invested;\n (n) To procure insurance against any loss in connection with its\nproperties or operations in such amount or amounts and from such\ninsurers, including the federal government, as it may deem necessary or\ndesirable, and to pay any premiums therefor;\n (o) To create or acquire one or more wholly owned subsidiaries in\naccordance with section one thousand twenty-i of this title to carry out\nall or any part of the purposes of this title;\n (p) To negotiate and enter into agreements with trustees or receivers\nappointed by United States bankruptcy courts or federal district courts\nor in other proceedings involving adjustment of debts and authorize\nlegal counsel for the authority to appear in any such proceedings;\n (q) To file a petition under chapter nine of title eleven of the\nUnited States bankruptcy code or take other similar action for the\nadjustment of its debts;\n (r) To enter into agreements to purchase power from the power\nauthority of the state of New York, the state, any state agency, any\nmunicipality, any private entity, or any other available source at such\nprice or prices as may be negotiated; provided, however, that the\nauthority shall not have the power to enter into any agreement or any\nnegotiation for the purchase of power from the dominion of Canada, or\nany political subdivision, public authority or private corporation\ntherein; but may enter into an agreement with the power authority of the\nstate of New York for the purchase of such power;\n (s) To enter into management agreements for the operation of all or\nany of the property or facilities owned by the authority;\n (t) To transfer any asset of the authority to one or more (i) private\nutility or (ii) municipal gas or electric agency established pursuant to\narticle fourteen-A of the general municipal law, for such consideration\nand upon such terms as the authority may determine to be in the best\ninterest of the gas and electric ratepayers in the service area;\n (u) Rate plans. Subject to subdivision six of section one thousand\ntwenty-k of this title to fix rates and charges for the furnishing or\nrendition of gas or electric power or of any related service at the\nlowest level consistent with sound fiscal and operating practices of the\nauthority and which provide for safe and adequate service. In\nimplementing this power:\n 1. The authority and the service provider shall, on or before February\nfirst, two thousand fifteen, submit for review to the department of\npublic service a three-year rate proposal for rates and charges to take\neffect on or after January first, two thousand sixteen.\n 2. The authority and the service provider shall thereafter submit for\nreview to the department of public service any rate proposal that would\nincrease the rates and charges and thus increase the aggregate revenues\nof the authority by more than two and one-half percent to be measured on\nan annual basis; provided, however, that the authority may place such\nrates and charges into effect on an interim basis, subject to\nprospective rate adjustment; provided, further, that a final rate plan\nissued by the authority that would not so increase such rates and\ncharges shall not be subject to the requirements of paragraph four of\nthis subdivision and shall be considered final for the purposes of\nreview under article seventy-eight of the civil practice law and rules.\nThe authority and/or the service provider may otherwise submit for\nreview to such department any rate proposal irrespective of its effect\non revenues.\n 2-a. The authority and the service provider shall not submit any rate\nproposal that shall assess any fee, penalty or other charge of any kind\nfor the voluntary termination of electric service to any residential\ncustomer for the purpose of utilizing alternative sources of electric\ngeneration in excess of that charged to customers who terminate their\nelectric service for any other reason.\n 3. The authority shall not fix any final rates and charges proposed\nthat would not be subject to review by the department of public service\npursuant to paragraphs one and two of this subdivision until after\nholding public hearings thereon upon reasonable public notice, with at\nleast one such hearing to be held each in the county of Suffolk and the\ncounty of Nassau.\n 4. Any recommendations associated with a rate proposal submitted\npursuant to paragraphs one and two of this subdivision shall be provided\nby the department of public service to the board of the authority\nimmediately upon their finalization by the department. Unless the board\nof the authority makes a preliminary determination in its discretion\nthat any particular recommendation is inconsistent with the authority's\nsound fiscal operating practices, any existing contractual or operating\nobligations, or the provision of safe and adequate service, the board\nshall implement such recommendations as part of its final rate plan and\nsuch final determination shall be deemed to satisfy the requirements of\nthis subdivision and be considered final for the purposes of review\nunder article seventy-eight of the civil practice law and rules. The\nboard shall make any such preliminary determination of inconsistency\nwithin thirty days of receipt of such recommendations, with notice and\nthe basis of such determination being provided to the department of\npublic service, and contemporaneously posted on the websites of the\nauthority and its service provider. The board shall thereafter, within\nthirty days of such posting and with due advance notice to the public,\nhold a public hearing with respect to its preliminary determination of\ninconsistency. At such hearing, the department of public service shall\npresent the basis for its recommendations, the board shall present the\nbasis for its determination of inconsistency and the service provider\nmay present its position. The authority and the service provider may,\nduring the time period before such public hearing reach agreement with\nthe department on disputed issues. Within thirty days after such public\nhearing, the board of the authority shall announce its final\ndetermination and planned implementation with respect to any such\nrecommendations. The authority's final determination of inconsistency\nshall be subject to any applicable judicial review proceeding, including\nreview available under article seventy-eight of the civil practice law\nand rules.\n (v) To enter upon any lands and within any building whenever in its\njudgment it may be necessary for the purpose of making surveys and\nexaminations to accomplish any purpose authorized by this title;\n (w) To enter into agreements to pay annual sums in lieu of taxes to\nany municipality with respect to any real property which is owned by the\nauthority and is located in such municipality;\n (x) To maintain an office or offices at such place or places in the\nstate as it may determine;\n (y) To make any inquiry, investigation, survey or study which the\nauthority may deem necessary to enable it effectively to carry out the\nprovisions of this title and, for that purpose, to take and hear proofs\nand testimony, and with the prior vote of a majority of the board which\nmajority vote shall include the vote of the chairman to compel the\nattendance of witnesses and to require the production of records, books,\npapers, accounts and other documents, including public records, and to\nmake copies thereof or extracts therefrom; and\n (z) To adopt, revise, amend and repeal rules and regulations with\nrespect to its operations, properties and facilities as may be necessary\nor convenient to carry out the purposes of this title, subject to the\nprovisions of the state administrative procedure act.\n (aa) Notwithstanding any other provision of law to the contrary the\nauthority shall not undertake any project without the approval of the\npublic authorities control board created pursuant to article one-A of\nthis chapter. Each application to the public authorities control board\nshall contain a project description and an explanation of why the\nproject meets the standards for project approval set forth in this\nsubdivision. The public authorities control board shall only approve a\nproject proposed by the authority upon its determination that:\n 1. the project is financially feasible as the standard is defined in\narticle one-A of this chapter;\n 2. the project does not materially adversely affect overall real\nproperty taxes in the service area;\n 3. the project is anticipated to result generally in lower utility\nrates in the service area; and\n 4. the project will not materially adversely affect overall real\nproperty taxes or utility rates in other areas of the state of New York.\n (bb) Comprehensive and regular management and operations audits. 1.\nThe authority and the service provider shall cooperate in the\nundertaking and completion of a regular and comprehensive management and\noperations audit conducted pursuant to the requirements of this\nsubdivision and paragraph (d) of subdivision three of section three-b of\nthe public service law. Such audit shall review and evaluate the overall\noperations and management of the authority and service provider,\nincluding such operations and management in the context of the\nauthority's duty to set rates at the lowest level consistent with\nstandards and procedures provided in subdivision (u) of this section,\nand include, but not be limited to: (i) the service provider's\nconstruction and capital program planning in relation to the needs of\ncustomers for reliable service; (ii) the overall efficiency of the\nauthority's and service provider's operations; (iii) the manner in which\nthe authority is meeting its debt service obligations; (iv) the\nauthority's Fuel and Purchased Power Cost Adjustment clause and recovery\nof costs associated with such clause; (v) the authority's and service\nprovider's annual budgeting procedures and process; (vi) the\napplication, if any, of the performance metrics designated in the\noperations services agreement and the accuracy of the data relied upon\nwith respect to such application; and (vii) the authority's compliance\nwith debt covenants.\n 2. The department of public service shall notify the authority that\nsaid department is in the process of initiating a comprehensive\nmanagement and operations audit as described in paragraph one of this\nsubdivision in a manner that ensures the timeliness of such audit, and\nin accordance with the following timeframe: the first comprehensive\nmanagement and operations audit shall be initiated as of the effective\ndate of chapter eight of the laws of two thousand twelve and undertaken\nin a manner and to an extent that is practicable in the context of the\nauthority's transition to a new management service structure; the second\ncomprehensive management and operations audit shall be initiated no\nlater than December fifteenth, two thousand sixteen; and all additional\ncomprehensive management and operations audits shall be initiated at\nleast once every five years thereafter. Within a reasonable time after\nsuch notification to the authority, said department or the independent\nauditor retained by the authority to undertake such audit shall hold\npublic statement hearings, with proper notice, in both Nassau and\nSuffolk counties for the purpose of receiving both oral and written\ncomments from the public on matters related to such audit as described\nin paragraph one of this subdivision.\n 3. Each such audit shall be completed within eighteen months of\ninitiation absent an extension for good cause shown by the department of\npublic service or the independent auditor under contract with the\nauthority with notice of such extension to the governor, the temporary\npresident of the senate, the speaker of the assembly, and the chairs of\nthe authority and the department of public service. Such audit shall be\nprovided to the board of the authority immediately upon its completion.\nThe department of public service shall provide notice of completion of\nsuch audit to the governor, the temporary president of the senate, the\nspeaker of the assembly, and the minority leaders of the senate and\nassembly, and the authority, upon receipt of such audit, shall post a\ncopy of such audit, including findings and recommendations, on its\nwebsite and the website of the service provider. Unless the board of the\nauthority makes a preliminary determination that any particular finding\nor recommendation contained in such audit is inconsistent with the\nauthority's sound fiscal operating practices, any existing contractual\nor operating obligation, or the provision for safe and adequate service,\nthe board shall implement or cause its service provider to implement\nsuch findings and recommendations in accordance with the timeframe\nspecified under such audit.\n 4. The board of the authority shall make any preliminary determination\nof inconsistency with respect to any such finding or recommendation\nwithin thirty days of receipt of the audit, with notice and the basis of\nsuch determination being provided to the department of public service.\nSuch notice and basis shall be posted contemporaneously on the\nauthority's website and the website of the service provider and the\nboard shall, within thirty days of such posting and with due advance\nnotice to the public, hold a public hearing with respect to its\npreliminary determination of inconsistency. At such hearing the\ndepartment of public service or the independent auditor responsible for\nundertaking such audit shall present the basis for its findings and\nrecommendations and the board shall present the basis for its\ndetermination of inconsistency and the service provider may present is\nposition. The authority, service provider and auditor may during the\ntime period prior to such public hearing reach agreement on disputed\nissues. Within thirty days after such public hearing, the board of the\nauthority shall announce its final determination and planned\nimplementations with respect to any such findings and/or\nrecommendations. The authority's final determination of inconsistency\nshall be subject to any applicable judicial review proceeding, including\nreview available under article seventy-eight of the civil practice law\nand rules.\n 5. Notwithstanding the foregoing, in the event that a comprehensive\nand regular management and operations audit as conducted in accordance\nwith this subdivision indicates a finding of fraud, abuse or\nmismanagement by a service provider of the authority, and upon a finding\nby the public service commission that reasonable cause exists for the\nbasis of such indication, the public service commission may order that\nany recommendations contained in the regular management and operations\naudit be implemented. The public service commission may also provide in\ntheir order, the date in which the recommendations be fully implemented.\nFailure to comply with any such order can result in the imposition of a\ncivil penalty by the public service commission against the service\nprovider.\n (cc) To prepare an emergency response plan pursuant to this\nsubdivision. 1. The service provider shall, in consultation with the\nauthority, prepare and maintain an emergency response plan (i) to assure\nthe reasonably prompt restoration of service in the case of an emergency\nevent, defined for purposes of this subdivision as an event where\nwidespread outages have occurred in the authority's service territory\ndue to a storm or other causes beyond the control of the authority and\nthe service provider, (ii) consistent with the requirements of paragraph\n(a) of subdivision twenty-one of section sixty-six of the public service\nlaw and any regulations and orders adopted thereto, and (iii)\nestablishing the separate responsibilities of the authority and service\nprovider. Such emergency response plan shall include plans setting forth\nhow the communication and coordination of efforts between the authority,\nservice provider, authority employees, service provider employees,\nauthority company crews, service provider company crews, mutual aid\ncrews, other utilities, local governments and any service provider or\nother entity performing services to assist the authority shall occur.\nSuch emergency response plan shall include identification of and\noutreach plans for customers who have documented their need for\nessential electricity for medical needs, which shall include but not be\nlimited to, apnea monitors for infants, cuirass respirators,\nhemodialysis machines, intravenous feeding machines, intravenous medical\ninfusion machines, oxygen concentrators, positive pressure respirators,\nrespirators/ventilators, rocking bed respirators, suction machines, and\ntank type respirators.\n 2. On or before February third, two thousand fourteen, the authority\nand service provider shall submit an emergency response plan to the\ndepartment of public service for review. Contemporaneously with such\nsubmission, the authority shall provide notice of such proposed plan to\nthe secretary of state for publication in the state register, the\nauthority and service provider each shall post such plan on their\nwebsites and otherwise make such plan available for review in-person,\nand afford members of the public an opportunity to submit written\ncomments and oral comments pursuant to at least one hearing to be held\neach in the county of Suffolk and the county of Nassau. Such written\ncomments must be submitted by March fourteenth, two thousand fourteen.\nThe authority and service provider shall provide a copy of all written\ncomments they receive and a transcript of such public hearings to the\ndepartment of public service for its consideration in reviewing the\nemergency response plan. The department shall provide any\nrecommendations to the authority and service provider with respect to\nsuch plan on or before April fifteenth, two thousand fourteen. Such plan\nmust be made final by June second, two thousand fourteen. For each year\nthereafter, the service provider shall submit an emergency response plan\nto the department of public service, and such department shall provide\nits recommendations, in accordance with a schedule to be established by\nsuch department and that is consistent with the schedule associated with\nsuch department's review of similar such plans provided by electric\ncorporations pursuant to subdivision twenty-one of section sixty-six of\nthe public service law.\n 3. By June second, two thousand fourteen, and by June first annually\nthereafter, the authority and service provider shall jointly certify to\nthe department of homeland security and emergency services that the\nemergency response plan ensures, to the greatest extent feasible, the\ntimely and safe restoration of energy services after an emergency\nconsistent with the requirements of paragraph (a) of subdivision\ntwenty-one of the public service law and the department's\nrecommendations. The filing of such emergency response plan shall also\ninclude a copy of all written mutual assistance agreements among\nutilities. The authority and service provider shall file with the county\nexecutives of Nassau and Suffolk county and the mayor of the city of New\nYork the most recent version of the emergency response plan, and make\nsure that such amended versions are timely filed.\n 4. Starting in calendar year two thousand fourteen, the service\nprovider annually shall undertake at least one drill to implement\nprocedures to practice its emergency response plan. The service provider\nshall notify and allow participation in such drill of all appropriate\nmunicipal emergency responders and officials.\n 5. If, during an emergency event, electric service is not restored in\nthree days, the service provider shall within sixty days from the date\nof full restoration file with the department a report constituting a\nreview of all aspects of the preparation and system restoration\nperformance during the event, and shall thereafter take into\nconsideration any recommendations made by the department associated with\nsuch review.\n (dd) On or before January first, two thousand fifteen, and by January\nfirst of each calendar year thereafter, to submit for review to the\ndepartment of public service a report detailing the service provider's\nplanned capital expenditures.\n (ee) On or before July first, two thousand fourteen, and annually\nthereafter, to submit for review to the department of public service any\nproposed plan related to implementing energy efficiency measures,\ndistributed generation or advanced grid technology programs for the\npurpose provided pursuant to paragraph (g) of subdivision three of\nsection three-b of the public service law.\n (ff) To assist and cooperate with the department of public service\nwith respect to any review undertaken pursuant to section three-b of the\npublic service law, including providing the department with reasonable\naccess to all facilities and premises owned or operated by the authority\nor its service provider, allowing review of all books and records of the\nauthority and its service provider, providing copies of requested\ndocuments, allowing interviews of all appropriate personnel, and\nresponding in a reasonable and timely manner to any inquiries or\nreporting requests made by the department; provided, however, that the\nobligations set forth in this subdivision shall not extend to affiliates\nof the service provider.\n (gg) Renewable generation and energy efficiency programs. 1. The\nauthority in coordination with the service provider, the power authority\nof the state of New York and the New York state energy research and\ndevelopment authority shall, to the extent the authority's rates are\nsufficient to provide safe and adequate transmission and distribution\nservice, and the measures herein, undertake actions to design and\nadminister renewable energy and energy efficiency measures in the\nservice area, with the goal of continuing and expanding such measures\nthat cost-effectively reduce system-wide peak demand, minimize long-term\nfuel price risk to rate payers, lower emissions, improve environmental\nquality, and seek to meet New York state climate change and\nenvironmental goals. Such actions shall also include implementation of\nany renewable energy competitive procurement or feed-in-tariff programs\nthat were approved by the authority as of the effective date of the\nchapter of the laws of two thousand thirteen which added this\nsubdivision.\n 2. The service provider shall consider, consistent with maintaining\nsystem reliability, renewable generation and energy efficiency program\nresults and options in establishing capital plans.\n (hh) Starting in calendar year two thousand fifteen, the authority and\nthe service provider shall submit to the department of public service\nfor review, any and all data, information and reports which set forth\nthe service provider's actual performance related to the metrics in the\noperations services agreement, including the authority's evaluation\nthereof, no less than forty-five days prior to the authority's\ndetermination of the service provider's annual incentive compensation.\n (ii) The service provider shall assist and cooperate with the\ndepartment of public service with respect to providing any data or\ninformation necessary for the department to post a compensation\nstatement for the service provider in accordance with subdivision three\nof section one hundred eleven-a of the public service law.\n * (jj) As deemed feasible and advisable by the trustees, to enter into\ncontracts with the power authority of the state of New York for the\nprovision of bill credits generated by the production of renewable\nenergy by a renewable energy system developed, constructed, owned, or\ncontracted for by the power authority of the state of New York under the\nrenewable energy access and community help program established pursuant\nto subdivision twenty-seven-b of section one thousand five of this\narticle and, unless such end-use electricity consumers opt out, to\nprovide such bill credits to low-income or moderate-income end-use\nelectricity consumers in disadvantaged communities, including such\nend-use electricity customers who have or who reside in buildings that\nhave on-site net-metered generation or who participate in a community\nchoice aggregation or community distributed generation project.\n * NB There are 2 sb (jj)'s\n * (jj) The authority and its service provider shall permit a\nresidential customer to designate a third party to receive notice of the\ntotal amount due or past due on all bills, the amounts of any payments\npaid by or on behalf of such residential customer, and copies of all\nnotices relating to termination of service and notices relating to\ncollection of amounts due sent to such residential customer, provided\nthat the designated third party indicates in writing a willingness to\nreceive such notices, and provided further, where a residential customer\nopts for third-party notifications, such residential customer may opt to\ncontinue to receive such notices.\n * NB There are 2 sb (jj)'s\n (kk) The authority and its service provider shall permit a landlord,\nupon written request of both the landlord and tenant, to designate a\nthird party to be notified of all requests for discontinuance of service\nto units occupied by such tenant, provided that the designated third\nparty indicates in writing a willingness to receive such notices, and\nprovided further, where the tenant and landlord customers opt for\nthird-party notifications, such tenant and landlord customers may opt to\ncontinue to receive such notices.\n * NB There are 2 § 1020-f's\n