§ 385 — Additional powers of the authority to issue special dedicated highway and bridge trust fund bonds

§ 385. Additional powers of the authority to issue special dedicated\nhighway and bridge trust fund bonds. 1. (a) The authority is hereby\nauthorized, as an additional corporate purpose thereof: (i) to enter\ninto a dedicated highway and bridge trust fund cooperative agreement or\nagreements with the commissioner of transportation for the financing by\nthe authority of disbursements made by the state or project sponsor for\nany of the activities authorized pursuant to the provisions of section\neighty-nine-b of the state finance law in any case where the expense\nthereof is paid in whole or in part by the state or project sponsor; and\n(ii) to issue use permits or leases to the department of transportation,\nor project sponsor, as the case may be, for projects financed by the\nauthority of disbursements made by the state or project sponsor in\naccordance with the provisions of a dedicated highway and bridge trust\nfund cooperative agreement or agreements, provided that such projects\nare maintained and operated under the supervision of the department of\ntransportation without cost to the New York state thruway authority for\nthe full term of such agreement or agreements, and provided further that\nsuch use permit or lease shall be granted by the authority on a toll\nfree basis. Provided, however, that at any time after April first,\nnineteen hundred ninety-five, no dedicated highway and bridge trust fund\ncooperative agreement with the commissioner of transportation pursuant\nto this section, nor any supplement thereto, need provide any conveyance\nof an interest in the property to the New York state thruway authority\nin connection with any obligations incurred pursuant to this section;\nand any such conveyance evidenced by a dedicated highway and bridge\ntrust fund cooperative agreement before such date shall, consistent with\nthe rights of holders of any such obligations incurred pursuant to this\nsection, revert to the people of the state of New York by appropriate\ninstrument or instruments, by quitclaim deed or otherwise, in\nconfirmation of such reversion and any related use permits shall be\nvoided.\n (b) The authority is hereby authorized, as additional corporate\npurposes thereof solely upon the request of the director of the budget:\n(i) to issue special emergency highway and bridge trust fund bonds and\nnotes for a term not to exceed thirty years and to incur obligations\nsecured by the moneys appropriated from the dedicated highway and bridge\ntrust fund established in section eighty-nine-b of the state finance\nlaw; (ii) to make available the proceeds in accordance with instructions\nprovided by the director of the budget from the sale of such special\nemergency highway and bridge trust fund bonds, notes or other\nobligations, net of all costs to the authority in connection therewith,\nfor the purposes of financing all or a portion of the costs of\nactivities for which moneys in the dedicated highway and bridge trust\nfund established in section eighty-nine-b of the state finance law are\nauthorized to be utilized or for the financing of disbursements made by\nthe state for the activities authorized pursuant to section\neighty-nine-b of the state finance law; and (iii) to enter into\nagreements with the commissioner of transportation pursuant to section\nten-e of the highway law with respect to financing for any activities\nauthorized pursuant to section eighty-nine-b of the state finance law,\nor agreements with the commissioner of transportation pursuant to\nsections ten-f and ten-g of the highway law in connection with\nactivities on state highways pursuant to these sections, and (iv) to\nenter into service contracts, contracts, agreements, deeds and leases\nwith the director of the budget or the commissioner of transportation\nand project sponsors and others to provide for the financing by the\nauthority of activities authorized pursuant to section eighty-nine-b of\nthe state finance law, and each of the director of the budget and the\ncommissioner of transportation are hereby authorized to enter into\nservice contracts, contracts, agreements, deeds and leases with the\nauthority, project sponsors or others to provide for such financing. The\nauthority shall not issue any bonds or notes in an amount in excess of\ntwenty-two billion three hundred nine million two hundred ninety-four\nthousand dollars $22,309,294,000, plus a principal amount of bonds or\nnotes: (A) to fund capital reserve funds; (B) to provide capitalized\ninterest; and, (C) to fund other costs of issuance. In computing for the\npurposes of this subdivision, the aggregate amount of indebtedness\nevidenced by bonds and notes of the authority issued pursuant to this\nsection, as amended by a chapter of the laws of nineteen hundred\nninety-six, there shall be excluded the amount of bonds or notes issued\nthat would constitute interest under the United States Internal Revenue\nCode of 1986, as amended, and the amount of indebtedness issued to\nrefund or otherwise repay bonds or notes.\n (c) Such obligations shall be issued or incurred with the approval of\nthe director of the budget and shall be special obligations of the\nauthority secured by and payable solely out of amounts appropriated by\nthe legislature as authorized pursuant to section eighty-nine-b of the\nstate finance law without recourse against any other assets, revenues or\nfunds of or other payments due to the authority. Upon payments of such\nappropriated amounts from the fund established pursuant to section\neighty-nine-b of the state finance law to the account of the authority,\nsuch funds may be pledged by the authority to secure its bonds, notes\nand other obligations authorized by paragraph (b) of this subdivision\nand shall be held free and clear of any claim by any person arising out\nof or in connection with articles twelve-A, thirteen-A and twenty-one of\nthe tax law. Without limiting the generality of the foregoing and\nwithout limiting the rights and duties of the commissioner of taxation\nand finance under articles twelve-A, thirteen-A and twenty-one of the\ntax law, no taxpayer, or any other person, including the state, shall\nhave any right or claim against the authority or any of its bondholders\nto any moneys appropriated and transferred from the dedicated highway\nand bridge trust fund established by section eighty-nine-b of the state\nfinance law for or in respect of a refund, rebate, credit, reimbursement\nor other repayment of taxes paid under such articles of the tax law.\n (d) The notes, bonds or other obligations of the authority authorized\nby this section shall not be a debt of the state and the state shall not\nbe liable thereon, nor shall they be payable out of any funds other than\nthose of the authority pledged therefor; and such bonds and notes shall\ncontain on the face thereof a statement to such effect. In addition, any\nagreements entered into by the department of transportation pursuant to\nsections ten-e, ten-f and ten-g of the highway law or any other entity\non behalf of the state to effect the implementation of any of the\nactivities financed in whole or in part with proceeds of the obligations\nof the authority authorized in this section do not constitute or create\na debt of the state, nor a contractual obligation in excess of the\namounts appropriated therefor and the state has no continuing legal or\nmoral obligation to appropriate money for payments due under such\ncontracts.\n (e) All of the provisions of this title relating to bonds and notes,\nwhich are not inconsistent with the provisions of this section, shall\napply to obligations authorized by this section, including but not\nlimited to the power to establish adequate reserves therefor and to\nissue renewal notes or refunding bonds thereof, provided, however, that\nthe authority shall be authorized to issue variable rate bonds or notes\npursuant to this section only until June thirtieth, two thousand, after\nwhich date no bonds or notes issued by the authority pursuant to this\nsection may have interest rates which vary, provided further that the\nexpiration of such authority shall not affect any such bonds or notes\nissued prior to such date.\n 2. Not less than one hundred twenty days before the beginning of each\nstate fiscal year, the chairman of the authority shall certify to the\ncomptroller and to the director of the budget a schedule of anticipated\ncash requirements for such fiscal year pursuant to any agreements\nentered into by the authority with the commissioner of transportation\npursuant to sections ten-e, ten-f and ten-g of the highway law. The\namounts so certified shall constitute required dedicated highway and\nbridge trust fund cooperative agreement payments due pursuant to such\nagreements under sections ten-e, ten-f and ten-g of the highway law. The\ntotal amount so certified for such fiscal year shall be equal to the\ntotal amount of the debt service due or expected to be due during such\nfiscal year on obligations of the authority incurred pursuant to\nsubdivision one of this section, including payments of interest and\nprincipal (including sinking fund payments), together with:\n (a) the amount, if any, due to any provider of any insurance policy,\nletter of credit or other letter of enhancement or a related facility\nwith respect to such obligations, representing payments made by it as\nprovided in the applicable resolution or trust indenture as a result of\nany previous failure of the state to make any payment provided for in\nthis section, including any related reasonable interest, fees or charges\nso provided;\n (b) the amount, if any, required to restore any applicable reserve\nfund to the applicable reserve fund requirement to the extent any\ndeficiency therein has resulted directly or indirectly from failure by\nthe state to make any payment provided for in this section;\n (c) the amount, if any, required to be rebated to the United States to\nprovide for continued exclusion from federal income taxation of interest\non obligations of the authority; and\n (d) the expenses of the establishment and continued operating expenses\nof the authority related to the financing of activities funded with the\nproceeds of obligations authorized by subdivision one of this section,\nincluding, but not limited to, trustees' fees, fees payable to providers\nof credit facilities, fees for issuing and paying agents, remarketing\nagents and dealers, legal counsel, financial or other advisors or\nconsultants, independent auditors, rating agencies, transfer or\ninformation agents, the publication of advertisements and notices,\nsurety arrangements, and printers' fees or charges incurred by the\nauthority to comply with applicable federal and state securities and tax\nlaws; and any other costs of issuance in excess of the amount provided\ntherefor from the proceeds of the sale of such obligations, to the\nextent that any of the foregoing amounts or expenses are not to be paid\nfrom other resources available to the authority for such purpose.\n 3. The chairman of the authority may revise such certification at such\ntimes as shall be determined by the chairman; provided, however, that\nthe chairman of the authority shall revise such certification not later\nthan thirty days after the issuance of any obligations authorized\npursuant to subdivision one of this section including refunding bonds,\nand affecting the cash requirements of the authority with respect to the\nobligations incurred pursuant to this section.\n 4. Such certification shall provide for payments on such dates as the\nauthority and the director of the budget deems appropriate to ensure\nthat sufficient funds will be available from the sources identified in\nthis section to enable it to meet its current obligations with respect\nto those obligations incurred pursuant to this section as they become\ndue.\n 5. Upon receipt of such certification, or any revision thereof, the\ncomptroller shall pay such dedicated highway and bridge trust fund\ncooperative agreement payments to the authority in accordance with such\ncertification, from the dedicated highway and bridge trust fund\nestablished by section eighty-nine-b of the state finance law. Such\npayments shall be made on or before the date specified in each\ncertificate or within thirty days after such receipt, whichever is\nlater, provided that all such amounts shall have been first appropriated\nby the state.\n 6. The agreement of the state contained in this section shall be\ndeemed executory only to the extent of appropriations available for\npayments under this section and no liability on account of any such\npayment shall be incurred by the state beyond such appropriations. The\nstate, acting through the director of the budget, and the authority may\nenter into, amend, modify, or rescind one or more agreements providing\nfor the specific manner, timing, and amount of payments to be made under\nthis section, but only in conformity with this section.\n 7. The authorization, sale and issuance of bonds, notes or other\nobligations pursuant to this section shall not be deemed an action as\nsuch term is defined in article eight of the environmental conservation\nlaw for the purposes of such article. Such exemption shall be strictly\nlimited in its application to such financing activities of the authority\nand does not exempt the department of transportation or any other entity\nfrom compliance with such article.\n 8. The state of New York shall and hereby agrees to and does indemnify\nand save harmless the New York state thruway authority from and against\nany and all liability, loss, damage, interest, judgments and liens\ngrowing out of, and any and all costs and expenses (including, but not\nlimited to, counsel fees and disbursements) arising out of or incurred\nin connection with any and all claims, demands, suits, actions or\nproceedings which may be made or brought against the New York state\nthruway authority arising out of any determinations made or actions\ntaken or omitted to be taken or compliance with any obligations under or\npursuant to this section.\n 9. Nothing contained in this section shall be deemed to restrict the\nright of the state to amend, repeal, modify or otherwise alter statutes\nimposing or relating to any taxes or fees, including the taxes imposed\npursuant to section two hundred eighty-four, articles thirteen-A and\ntwenty-one of the tax law and fees imposed by section four hundred one\nof the vehicle and traffic law. The authority shall not include within\nany resolution, contract or agreement with holders of the bonds, notes\nand other obligations issued under this title any provision which\nprovides that a default occurs as a result of the state exercising its\nright to amend, repeal, modify or otherwise alter any such taxes and\nfees.\n 10. Any resolution authorizing bonds, notes or other obligations shall\nreserve the right of the state, upon amendment of the New York state\nconstitution allowing the issuance, or assumption, of bonds, notes or\nother obligations secured by revenues, which may include the revenues\nsecuring bonds, notes or other obligations of the authority, (i) to\nassume, in whole or in part, such bonds, notes or other obligations of\nthe authority, (ii) to extinguish the existing lien of such resolution,\nand (iii) to substitute security for the bonds, notes, or other\nobligations of the authority, in each case only so long as such\nassumption, extinguishment or substitution is done in accordance with\nsuch resolution.\n