NY Pub Auth L § 1269-B (2021)
2021 New York Laws PBA - Public Authorities Article 5 - Public Utility Authorities Title 11 - Metropolitan Commuter Transportation Authority 1269-B - Capital Program Plans; Approvals; Effect of Disapproval.

§  1269-b. Capital program plans; approvals; effect of disapproval. 1. (a) On or before October first, nineteen hundred eighty-one, and  on  or before  October  first  of  every  fifth  year  thereafter,  through and including October first,  nineteen  hundred  ninety-one,  the  authority shall  submit  to  the  metropolitan  transportation  authority  capital program review board two capital program plans for the five year  period commencing January first of the following year;  (b) not later than ten days after the effective date of this paragraph the  authority shall submit to the metropolitan transportation authority capital program review board two capital program plans for the five-year period commencing January first, nineteen hundred ninety-five; and  (c) on or before October first, nineteen hundred ninety-nine and every fifth year thereafter, the authority shall submit  to  the  metropolitan transportation  authority  capital  program  review  board  two  capital program plans for the five-year period commencing January first  of  the following year.   For  each  of the periods described above, one such plan shall contain the capital program for the transit facilities operated by the New  York city  transit  authority  and its subsidiaries and for the Staten Island rapid transit operating authority; the other such plan shall contain the capital program for the railroad facilities, not  including  the  Staten Island  rapid transit operating authority, under the jurisdiction of the authority.   Each plan shall set  system-wide  goals  and  objectives  for  capital spending,  establish  standards for service and operations, and describe each capital element proposed to be  initiated  in  each  of  the  years covered  by  the plan and explain how each proposed element supports the achievement of the service and operational standards established in  the plan.  Each  plan  shall  also  set  forth  an estimate of the amount of capital funding required each year and  the  expected  sources  of  such funding.  Each  plan subsequent to the first such plan and each proposed amendment or modification thereof shall also describe the current status of each capital element included in the  previously  approved  plan,  if any.  Each  plan shall be accompanied or supplemented by such supporting materials as the metropolitan transportation authority  capital  program review board shall require.   A capital element shall mean either a category of expenditure itemized in a plan, as hereinafter provided, for which a specified maximum dollar amount  is  proposed to be expended, or a particularly described capital project within one or more categories for which no  maximum  expenditure is  proposed,  but for which an estimate of expected cost is provided. A capital element shall be deemed to have been initiated for  purposes  of this  section  if  in  connection  with such element the authority shall certify that (i) purchase or construction contracts  have  been  entered into, obligating in the aggregate an amount exceeding ten percent of the maximum  or  estimated  cost of the element as set forth in a plan, (ii) financing specific to the project has been undertaken,  or  (iii)  in  a case  where such element is limited to design or engineering, a contract therefor has been entered into.   2. Each plan shall itemize  the  capital  elements  included  in  each section  of  the plan under the following categories of expenditure: (a) rolling stock and buses; (b) passenger stations;  (c)  track;  (d)  line equipment;  (e)  line  structures;  (f)  signals and communications; (g) power equipment, emergency power equipment and substations;  (h)  shops, yards,   maintenance  facilities,  depots  and  terminals;  (i)  service vehicles; (j) security systems; (k) electrification extensions; and  (l) unspecified, miscellaneous and emergency.    2-a.  (a)  A  copy  of any proposed capital program plan that has been distributed to  one  or  more  committees  of  the  authority  shall  be simultaneously  provided,  for informational purposes, to the members of the metropolitan transportation authority capital program review  board. Provision of such a proposed capital program plan to the capital program review board pursuant to this provision for informational purposes shall not  constitute  the  submission  of  a capital program plan for capital program review board approval.  (b) A copy  of  any  proposed  capital  program  plan  that  has  been distributed  to  one  or  more  committees  of  the  authority  shall be simultaneously provided to the public by the metropolitan transportation authority, via its official or shared internet website.   3. A plan may only be approved in two ways: (i) a plan shall  only  be approved  by  the  board  by a unanimous vote of the members entitled to vote thereon and within ninety days or by September fifteenth,  nineteen hundred  ninety-six  in  the  case of a plan submitted during the period described in paragraph (b) of subdivision one of this  section,  of  the submission  of  a plan the metropolitan transportation authority capital program review board may notify the authority of  its  approval  of  the same;  or  (ii)  if  the  plan  is not approved by the board within such ninety  day  period  or  by  September   fifteenth,   nineteen   hundred ninety-six,  as  the  case may be, and no individual member of the board who is entitled to vote thereon has notified the authority in writing of his or her disapproval with a written explanation  of  such  disapproval including  specific  aspects  of  the  plan that are of concern and what steps could be taken to address such concerns within  such  period,  the plan  shall  be  deemed  to  have  been  approved. Upon the receipt of a written disapproval, the authority shall be provided an  opportunity  to respond  in  writing within ten days of the receipt of such disapproval. Upon the receipt of such response, the disapproving  member  shall  have ten days to reconsider and withdraw such written disapproval.   If  the plan is not approved, the authority may thereafter reformulate and resubmit such plan at any time. Within thirty days of the submission of such reformulated plan the board may  notify  the  authority  of  its approval  of  the  same by the unanimous vote of the members entitled to vote thereon, or, if the  reformulated  plan  is  not  approved  and  no individual  member  of  the  board  who  is  entitled  to  vote  on such reformulated plan has notified the authority in writing of  his  or  her disapproval within such period, the reformulated plan shall be deemed to have been approved.   4.  No  general obligation bonds or notes of the authority, no special obligation bonds or notes of the authority to finance a transit project, as such term is defined in section twelve hundred  sixty-six-c  of  this title,  and  no  bonds  or  notes  of  the  Triborough bridge and tunnel authority to finance a project pursuant to the  authorization  contained in paragraph (r) of subdivision nine of section five hundred fifty-three of  this  chapter  shall  be  issued  to  finance the costs of a capital element unless such capital element and such source of funding  was  set forth   in  a  plan  submitted  to  and  approved  by  the  metropolitan transportation authority capital program review board.   5. The disapproval  of  a  plan  by  the  metropolitan  transportation authority  capital  program review board shall not affect: (a) the right of the authority, of the Triborough bridge and tunnel authority,  or  of the  New  York  city transit authority, or of the subsidiaries of any of them to initiate and complete any capital element which will be financed otherwise than through the issuance of the bonds or notes  the  issuance of  which  is prohibited under subdivision four of this section; (b) the right of the authority or the Triborough bridge and tunnel authority  to  issue  bonds  or  notes to finance a capital element which was initiated prior to such disapproval in conformity with a previously approved plan; (c) the right of the New York city transit authority to issue its bonds, notes, lease, sublease or other contractual obligations in payment for a transit project initiated prior to such disapproval in conformity with a previously  approved  plan;  (d)  the  right  of the authority or of the Triborough bridge and tunnel authority to issue bonds or notes to refund or otherwise repay any of its outstanding bonds or notes or  to  fulfill any  of  their  obligations  to  the holders of any of their outstanding bonds or notes; or (e) the right of the New York city transit  authority to  issue  its  bonds,  notes,  lease,  sublease  or  other  contractual obligations to refund or otherwise repay any of its outstanding bonds or notes or to fulfill any of its obligations to the holders of any of  its outstanding bonds or notes.   6. Notwithstanding the provisions of subdivision four of this section, if  a  source  of  funding  described  in  an  approved  plan  shall  be unavailable or be available in a lesser amount than that  set  forth  in such  plan, the authority and the Triborough bridge and tunnel authority may issue bonds or notes as necessary to provide the  requisite  funding for  the  capital  elements  included in the plan to the extent that the aggregate amount of such bonds or notes to be issued in substitution for such unavailable amounts shall not exceed the greater of  fifty  million dollars or twenty percent of the total amount described in such plan for either  the  substitute  funding  source  or  the  funding  source being substituted for, subject to the limitations  set  forth  in  subdivision eleven  of  section  five  hundred  fifty-three-e  of  this  chapter and paragraph (a) of subdivision four of section twelve hundred  seven-m  of this article.   7.  (a) The authority may from time to time submit to the metropolitan transportation authority capital  program  review  board  amendments  or modifications  to  any  five-year  plan theretofore submitted, and shall submit such an amendment or modification (i) if the  estimated  cost  of any  capital element for which a specified dollar amount was proposed to be expended exceeds the amount set forth in the approved plan  for  such element by more than ten percent, (ii) if with respect to a particularly described  capital  element for which only an estimate of projected cost has been provided in  the  plan  there  is  a  material  change  in  the description  of  such  element from that contained in the approved plan, (iii) if a capital element not previously included in the approved  plan is  proposed  to  be  undertaken and its cost, together with the cost of other elements included in category (l) of  the  plan,  exceeds  by  ten percent  the amount provided for such category (l) elements, (iv) if the authority shall propose to change by more than one year  the  time  when any  capital  element  is proposed to be initiated or the effect of such change will be to increase  the  estimated  amount  of  capital  funding required in any year covered by the plan by more than twenty percent, or (v)  if  the  availability  of  funding sources changes to the degree to which the authority or the Triborough bridge and  tunnel  authority  are precluded  from exercising the authorization provided in subdivision six of this section and the authority wishes to do so.  (b) An amendment or modification may only be approved in two ways: (i) an amendment or modification shall only be approved by the  board  by  a unanimous vote of the members entitled to vote thereon and within thirty days  of the submission of an amendment or modification the metropolitan transportation authority capital program review  board  may  notify  the authority  of  its  approval  of  the  same; or (ii) if the amendment or modification is not approved by the board within such thirty day  period and  no  individual member of the board who is entitled to vote thereon,  has notified the authority in writing of  his  disapproval  within  such period,  the  amendment  or  modification  shall  be deemed to have been approved.   8.  In formulating its capital program plans, the authority shall give consideration to the physical condition and urgency of need of  each  of the several transportation and transit systems involved, to the needs of all  of  the  communities  and  areas  serviced by these systems, to the extent to which other capital aid or assistance may be available to each of these systems, and to the safety,  comfort  and  convenience  of  its passengers.  In  determining  the  source or method of funding which the authority is to use to finance the cost of the capital elements included in  its  capital  program  plans,  the  authority  shall,   insofar   as practicable,   give  consideration,  among  other  things,  to  (i)  the potential impact of each  such  source  or  method  upon  the  level  of passenger   fares,  (ii)  the  relative  cost  of  the  several  funding alternatives, and (iii) the relative ability of each source or method to provide funding at times and in amounts estimated to be required by  the capital  program  plan. To the extent funding is proposed to be obtained through the issuance and sale of bonds or notes,  the  authority  shall, insofar as practicable and consistent with the matters set forth in (i), (ii)  and  (iii) above, give preference to the use of funds appropriated or to be appropriated to the authority by virtue  of  service  contracts with  the director of the budget entered into pursuant to the provisions of the transportation systems assistance and financing act of  1981  for purposes  of  paying  the  annual cost of debt service for such bonds or notes.   9. Prior to the adoption by the authority or the New York city transit authority of its general resolution pursuant to which it is to issue any general or special obligation bonds or notes, not including  any  series resolution  or  resolutions,  the  authority shall submit a copy of such resolution to the metropolitan transportation authority capital  program review  board.  Within  fifteen  days  of such submission, the board may notify the authority of its  unanimous  approval  of  the  same  by  the members  entitled  to vote thereon, or if the resolution is not approved and no individual member of the board who is entitled to  vote  on  such resolution has notified the authority in writing of his disapproval, the resolution  shall be deemed to have been approved. Neither the board nor any member thereof shall disapprove a proposed resolution by  reason  of any  covenant  requiring  the  authority,  the  New  York  city  transit authority or their subsidiaries  to  charge  and  fix  fares,  fees  and rentals  sufficient  to pay its operating expenses and the debt service, including the funding of requisite reserves,  on  the  bonds  and  notes authorized  by  such  resolution.  If  the  board  or any member thereof entitled to vote thereon shall disapprove  a  proposed  resolution,  the authority  may,  at any time, resubmit a reformulated resolution. Within ten days of the submission of such reformulated resolution the board may notify the authority of its  unanimous  approval  of  the  same  by  the members  entitled to vote thereon, or, if the reformulated resolution is not approved and no individual member of the board who  is  entitled  to vote  thereon  has  notified the authority in writing of his disapproval within such period, the reformulated resolution shall have  been  deemed to  have  been  approved.  Any  individual member of the board who votes against a resolution or a reformulated resolution or  who  notifies  the authority  of  his  disapproval  shall  state  his reasons therefor. The member appointed on the recommendation of the mayor of the city  of  New York  shall  not  participate in the action of the board with respect to any bond resolution of the  authority  pursuant  to  which  its  general obligation  bonds  or notes may be issued. Neither the authority nor the  New  York  city  transit  authority  shall  adopt  a   bond   resolution disapproved by the board as herein provided.   10.  In  formulating  its  capital  program plans, the authority shall develop criteria to determine how to best prioritize subway stations for accessibility improvements. Such criteria  shall  include,  but  not  be limited  to:  citywide  geographic  coverage;  transit transfer options; annual ridership volume; census  tract  data  for  senior  and  disabled populations  and percentage of those populations in poverty; residential density of surrounding neighborhoods; and proximity to medical  centers, schools,  parks,  business  districts, cultural hubs and senior centers. Such criteria shall be made publicly available.