LBD17482-02-0
A. 11172 2
[designated by the governor from amongst the members] THE PRESIDENT OF
THE URBAN DEVELOPMENT CORPORATION. [Three] SEVEN members shall consti-
tute a quorum for the purposes of organizing the board and conducting
the business thereof; and no actions of the board may be taken except
upon the affirmative vote of at least [three] SEVEN members. Videocon-
ferencing may be used for attendance and participation by members of the
board. If videoconferencing is used the board shall provide an opportu-
nity for the public to attend, listen and observe at any site at which a
member participates. The public notice for the meeting shall inform the
public that [vidioconferencing] VIDEOCONFERENCING will be used, identify
the locations for the meeting, and state that the public has the right
to attend the meeting at any of the locations. Members of the board,
except those who are employees or officers of the state, its authorities
or agencies shall not receive a salary or other compensation, but shall
be allowed the necessary and actual expenses incurred in the performance
of duties under this article.
S 2. The opening paragraph of paragraph 5 of subdivision (a) of
section 189 of the economic development law, as amended by chapter 217
of the laws of 2009, is amended to read as follows:
"Power for jobs electricity savings reimbursements" shall mean
payments made by the power authority of the state of New York as recom-
mended by the board to recipients of allocations of power under phases
four and five of the power for jobs program for a period of time until
November thirtieth, two thousand four, subsequent to the expiration of
their phase four or five power for jobs contract provided however that
any power for jobs recipient may choose to receive an electricity
savings reimbursement as a substitute for a contract extension for the
period from the date the recipient's contract expires through [May
fifteenth] JUNE THIRTIETH, two thousand [ten] ELEVEN. The "basic
reimbursement" is an amount that when credited against the recipient's
actual "unit cost of electricity" during a quarter (meaning the cost for
commodity and delivery per kilowatt-hour for the quantity of electricity
purchased and delivered under the power for jobs program during a simi-
lar period in the final year of the recipient's contract), results in an
effective unit cost of electricity during the quarter equal to the aver-
age unit cost of electricity such recipient paid during the final year
of the contract for power allocated under phase four or five of the
power for jobs program.
S 3. Subdivisions (f) and (l) of section 189 of the economic develop-
ment law, as amended by chapter 217 of the laws of 2009, are amended to
read as follows:
(f) Eligibility. The board shall recommend applications for allo-
cations of power under the power for jobs program to or for the use of
businesses which normally utilize a minimum peak electric demand in
excess of four hundred kilowatts; provided, however, that up to one
hundred megawatts of power available for allocation during the initial
three phases of the power for jobs program may be recommended for allo-
cations to not-for-profit corporations and to small businesses; and,
provided, further that up to seventy-five megawatts of power available
for allocation during the fourth phase of the program may be recommended
for allocations to not-for-profit corporations and to small businesses.
The board may require small businesses that normally utilize a minimum
peak electric demand of less than one hundred kilowatts to aggregate
their electric demand in amounts of no less than one hundred kilowatts,
for the purposes of applying to the board for an allocation of power.
The board shall recommend allocations of the additional three hundred
A. 11172 3
megawatts available during the fourth phase of the program to any such
eligible applicant, including any recipient of power allocated during
the first phase of the program. The board shall recommend allocations of
the additional one hundred eighty-three megawatts available during the
fifth phase of the program to any eligible applicant, including any
recipient of power allocated during the second and third phases of the
program; provided, however, that the term of contracts for allocations
under the fifth phase of the program shall in no case extend beyond [May
fifteenth] JUNE THIRTIETH, two thousand [ten] ELEVEN. Notwithstanding
any provision of law to the contrary, and, in particular, the provisions
of this chapter concerning the terms of contracts for allocations under
the power for jobs program, the terms of any contract with a recipient
of power allocated under phase two of the power for jobs program that
has expired or will expire on or before the thirty-first day of August,
two thousand two, may be extended by the power authority of the state of
New York for an additional period of three months effective on the date
of such expiration, pending the filing and approval of an application by
such recipient for an allocation under the fifth phase of the program.
The term of any new contract with such recipient under the fifth phase
of the program shall be deemed to include any three month contract
extension made pursuant to this subdivision and the termination date of
any such new contract under phase five shall be no later than if such
new contract had commenced upon the expiration of the recipient's
original phase two contract. The terms of any contract with a recipient
of power allocated under phase four and/or phase five of the power for
jobs program that has expired or will expire on or before the thirty-
first day of December, two thousand five, may be extended by the power
authority of the state of New York from a date beginning no earlier than
the first day of December, two thousand four and extending through [May
fifteenth] JUNE THIRTIETH, two thousand [ten] ELEVEN.
(l) The board shall solicit and review applications for the power for
jobs electricity savings reimbursements and contract extensions from
recipients of power for jobs allocations under phases four and five of
the program for the award of such reimbursements and/or contract exten-
sions. The board may prescribe a simplified form and content for an
application for such reimbursements or extensions. An applicant shall be
eligible for such reimbursements and/or extensions only if it is in
compliance with and agrees to continue to meet the job retention and
creation commitments set forth in its prior power for jobs contract, or
such other commitments as the board deems reasonable; provided, however,
that for the power for jobs electricity savings reimbursements and
contract extensions granted on or after June thirtieth, two thousand
nine through [May fifteenth] JUNE THIRTIETH, two thousand [ten] ELEVEN,
the board shall expedite the awarding of such reimbursements and/or
extensions and shall defer the review of compliance with such commit-
ments until after the applicant has been awarded a power for jobs elec-
tricity savings reimbursement and/or contract extension. The board shall
review such applications and make recommendations for the award: 1. of
such reimbursements through the power authority of the state of New York
for a period of time up to November thirtieth, two thousand four, and 2.
of such contract extensions or reimbursements as applied for by the
recipient for a period of time beginning December first, two thousand
four and ending [May fifteenth] JUNE THIRTIETH, two thousand [ten] ELEV-
EN. At no time shall a recipient receive both a reimbursement and
extension after December first, two thousand four. The power authority
of the state of New York shall receive notification from the board
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regarding the award of power for jobs electricity savings reimbursements
and/or contract extensions.
S 4. Section 9 of chapter 316 of the laws of 1997 amending the public
authorities law and other laws relating to the provision of low cost
power to foster statewide economic development, as amended by chapter
217 of the laws of 2009, is amended to read as follows:
S 9. This act shall take effect immediately [and]; PROVIDED HOWEVER
THAT SECTIONS ONE, TWO, THREE, FIVE AND SIX OF THIS ACT shall expire and
be deemed repealed [May 15, 2010] JUNE 30, 2011.
S 5. Section 11 of chapter 645 of the laws of 2006 amending the
economic development law and other laws relating to reauthorizing the
New York power authority to make contributions to the general fund, as
amended by chapter 217 of the laws of 2009, is amended to read as
follows:
S 11. This act shall take effect immediately and shall be deemed to
have been in full force and effect on and after April 1, 2006; provided,
however, that the amendments to section 183 of the economic development
law and subparagraph 2 of paragraph g of the ninth undesignated para-
graph of section 1005 of the public authorities law made by sections two
and six of this act shall not affect the expiration of such section and
subparagraph, respectively, and shall be deemed to expire therewith;
provided further, however, that the amendments to section 189 of the
economic development law and subdivision 9 of section 186-a of the tax
law made by sections three, four, five and ten of this act shall not
affect the repeal of such section and subdivision, respectively, and
shall be deemed to be repealed therewith; provided further, however,
that section seven of this act shall expire and be deemed repealed [May
15, 2010] JUNE 30, 2011.
S 6. Section 183 of the economic development law, as amended by chap-
ter 316 of the laws of 1997, subdivision (g) as amended by chapter 226
of the laws of 2002, subdivision (h) as added by chapter 313 of the laws
of 2005 and paragraphs 2 and 4 of subdivision (h) as amended by chapter
217 of the laws of 2009, is amended to read as follows:
S 183. General powers and duties of the board. In furtherance of the
purposes set forth in this article, the board shall have the following
powers:
(a) To adopt, within one hundred twenty days after appointment, eligi-
bility criteria and rules and regulations, IN CONSULTATION WITH THE
POWER AUTHORITY OF THE STATE OF NEW YORK AND THE URBAN DEVELOPMENT
CORPORATION, relating to the activities of the board, AS DESCRIBED IN
THIS ARTICLE.
(b) To evaluate applications for allocations of economic development
power and of power under the power for jobs program AND THE POWER
SOLUTIONS PROGRAM and to make recommendations with respect to such
proposed allocations; PROVIDED HOWEVER, THAT THE BOARD SHALL NOT ACCEPT
ANY NEW APPLICATION THAT REQUESTS AN ALLOCATION OF POWER UNDER THE POWER
FOR JOBS PROGRAM AFTER JUNE THIRTIETH, TWO THOUSAND ELEVEN.
(c) To evaluate economic development plans for the use of industrial
incentive awards submitted by the power authority of the state of New
York pursuant to this article.
(d) To provide advice and assistance when appropriate to applicants on
state economic development programs and services in addition to the
economic development power and power under the power [for jobs]
SOLUTIONS program and industrial incentive awards specifically provided
for in this section.
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(e) In consultation with the department of public service, to estab-
lish and develop guidelines for a competitive procurement process as
provided in subdivision (c) of section one hundred eighty-nine of this
article.
(f) TO SOLICIT APPLICATIONS FOR AWARDS UNDER THE POWER SOLUTIONS
PROGRAM, AND MAKE RECOMMENDATIONS TO THE POWER AUTHORITY OF THE STATE OF
NEW YORK FOR AWARDS UNDER SUCH PROGRAM IN THE MANNER AUTHORIZED IN
SECTION ONE HUNDRED EIGHTY-EIGHT-A OF THIS ARTICLE.
The [department, the] power authority of the state of New York, [the
urban development corporation, and all other state officers, depart-
ments, boards, divisions and commissions] WITH THE ASSISTANCE OF THE
URBAN DEVELOPMENT CORPORATION AND THE DEPARTMENT OF ECONOMIC DEVELOP-
MENT, shall render such services to the board [within their respective
functions] as may be requested by the board. IN ADDITION, EVERY AGENCY,
DEPARTMENT, OFFICE, DIVISION OR PUBLIC AUTHORITY OF THIS STATE SHALL
COOPERATE WITH THE BOARD AND FURNISH SUCH INFORMATION AND ASSISTANCE AS
THE BOARD DETERMINES IS REASONABLY NECESSARY TO ACCOMPLISH ITS PURPOSE.
(g) [The] EXCEPT AS OTHERWISE PROVIDED IN THIS SECTION, THE board
shall solicit applications for economic development power and for power
under the power [for jobs] SOLUTIONS program by public notice. Such
notice shall be in the form of newspaper advertisements, press releases,
and by such other means as the board finds appropriate. Solicitations of
[preliminary] applications for power under the power for jobs program
shall begin [promptly after the effective date of chapter three hundred
sixteen of the laws of nineteen hundred ninety-seven establishing such
program. The board shall solicit applications for the additional three
hundred megawatts of power available during the fourth phase of the
program by public notice, written notification to each recipient of
power allocated during the first phase of the program, and such other
means as the board finds appropriate. Solicitations of applications for
such three hundred megawatts of power available in phase four of the
program shall begin promptly after the effective date of part KK of
chapter sixty-three of the laws of two thousand making such power avail-
able. The board shall solicit applications for the additional one
hundred eighty-three megawatts of power available during the fifth phase
of the program by public notice, written notification to each recipient
of power allocated during the second and third phases of the program,
and by such other means as the board finds appropriate. Solicitations
for such one hundred eighty-three megawatts of power available in phase
five of the program shall begin promptly after the effective date of the
chapter of the laws of two thousand two making such power available]
JANUARY THIRTY-FIRST, TWO THOUSAND ELEVEN.
(h) 1. The board shall solicit applications for and make recommenda-
tions for approval of energy cost savings benefits [in amounts made
available pursuant to the twelfth undesignated paragraph of section one
thousand five of the public authorities law] BEGINNING JANUARY
THIRTY-FIRST, TWO THOUSAND ELEVEN for the purpose of lowering the cost
of electricity to eligible businesses.
2. [During the period commencing] COMMENCING on November first, two
thousand five [and ending on May fifteenth, two thousand ten] eligible
businesses shall only include customers served under the power authority
of the state of New York's high load factor, economic development power
and other business customers served by political subdivisions of the
state authorized by law to engage in the distribution of electric power
[that were authorized to be served by the authority from the authority's
former James A. Fitzpatrick nuclear power plant as of the effective
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date of this subdivision whose power prices may be subject to increase
before May fifteenth, two thousand ten. Provided, however, that the
total amount of megawatts of replacement and preservation power which,
due to the extension of the energy cost savings benefits, are not relin-
quished by or withdrawn from a recipient shall be deemed to be relin-
quished or withdrawn for purposes of offering such megawatts by the
authority for reallocation pursuant to subdivision thirteen of section
one thousand five of the public authorities law. Provided, further, that
for any such reallocation, the authority shall maintain the same energy
cost savings benefit level for all eligible businesses using any avail-
able authority resources as deemed feasible and advisable by the trus-
tees pursuant to section seven of part U of chapter fifty-nine of the
laws of two thousand six].
3. Each application for an energy cost savings benefit shall be evalu-
ated under criteria adopted by the board in consultation with the power
authority of the state of New York, which criteria shall be designed to
promote economic development, maintain and develop jobs, and encourage
new capital investment throughout the state of New York. Such criteria
shall address but need not be limited to:
(a) the overall economic impact of the applicant in terms of the
number of jobs to be created or retained, average annual payroll, capi-
tal investment and use of New York state suppliers;
(b) the likelihood that in the absence of approval of an energy cost
savings benefit, the applicant would close, contract or relocate outside
the state of New York;
(c) the applicant's compliance with the commitment to retain and/or
create jobs contained in its prior power contract with the power author-
ity of the state of New York; and
(d) the extent to which an energy cost savings benefit will affect the
overall productivity or competitiveness of the applicant's business and
its existing employment within the state.
(E) THE EXTENT TO WHICH THE APPLICANT HAS PREVIOUSLY UNDERTAKEN ENERGY
AUDITS AND/OR INVESTED IN ENERGY EFFICIENCY MEASURES INCLUDING CONSIDER-
ATION OF THE TIMING OF SUCH AUDITS OR MEASURES, THE AMOUNT OF INVEST-
MENTS IN ENERGY EFFICIENCY RELATIVE TO THE SIZE, NATURE AND HISTORIC
ENERGY CONSUMPTION, AND OTHER CAPITAL INVESTMENTS OF THE BUSINESS, THE
RELATIVE IMPROVEMENT IN ENERGY EFFICIENCY AND/OR NET ENERGY OR FINANCIAL
SAVINGS RESULTING FROM SUCH INVESTMENTS, AND SUCH OTHER FACTORS AS THE
BOARD MAY CONSIDER APPROPRIATE, AND/OR THE EXTENT TO WHICH THE APPLICANT
WILL AGREE, IF RECOMMENDED BY THE BOARD, TO COMMIT TO MAKING COST EFFEC-
TIVE TANGIBLE INVESTMENTS IN ENERGY EFFICIENCY MEASURES;
(F) THE BOARD MAY ALSO CONSIDER THE EXTENT TO WHICH THE APPLICANT HAS
INVESTED IN ONSITE POWER GENERATION FOR COMBINED HEAT AND POWER AND/OR
DISTRIBUTED GENERATION PURPOSES OR WILL AGREE, IF RECOMMENDED BY THE
BOARD, TO CONSIDER MAKING COST EFFECTIVE TANGIBLE INVESTMENTS IN ONSITE
POWER GENERATION FOR COMBINED HEAT AND POWER AND/OR DISTRIBUTED GENER-
ATION PURPOSES AS IDENTIFIED PURSUANT TO SUBDIVISION SEVENTEEN OF
SECTION ONE THOUSAND FIVE OF THE PUBLIC AUTHORITIES LAW AS A CONDITION
TO RECEIVING AN AWARD; PROVIDED HOWEVER, THAT IN NO EVENT SHALL THE
ABSENCE OF SUCH INVESTMENT OR CONSIDERATION COUNT AGAINST THE APPLI-
CANT'S ELIGIBILITY FOR AN AWARD.
4. Applications for an energy cost savings benefit shall be in the
form and contain such information, exhibits and supporting data as the
board may prescribe. The board shall review the applications received
and shall determine the applications which best meet the criteria estab-
lished for the benefits pursuant to this subdivision and it shall recom-
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mend such applications to the power authority of the state of New York
with such terms and conditions as it deems appropriate; provided, howev-
er, that for energy cost savings benefits granted on or after June thir-
tieth, two thousand nine through May fifteenth, two thousand ten, the
board shall expedite the awarding of such benefits and shall defer the
review of compliance with such criteria until after the applicant has
been awarded an energy cost savings benefit. Such terms and conditions
shall include reasonable provisions providing for the partial or
complete withdrawal of the energy cost savings benefit in the event the
recipient fails to maintain mutually agreed upon commitments that may
include, but are not limited to, levels of employment, capital invest-
ment, ENERGY EFFICIENCY MEASURES and power utilization. Recommendation
for approval of an energy cost savings benefit shall qualify an appli-
cant to receive an energy cost savings benefit from the power authority
of the state of New York pursuant to the terms and conditions of the
recommendation.
5. The transfer of an energy cost savings benefit shall be prohibited
unless specifically approved by the board as consistent with the crite-
ria established pursuant to this paragraph. Any transfer which occurs
without the board's approval shall be invalid and such transfer may
subject the recipient to revocation of its benefit and modification or
revocation of its contract.
S 7. The economic development law is amended by adding a new section
188-a to read as follows:
S 188-A. POWER SOLUTIONS PROGRAM. 1. DEFINITIONS. FOR THE PURPOSES OF
THIS SECTION, THE FOLLOWING TERMS SHALL HAVE THE FOLLOWING MEANINGS:
(A) "APPLICABLE CRITERIA" SHALL MEAN THE CRITERIA SPECIFIED IN SUBDI-
VISION THREE OF THIS SECTION.
(B) "AUTHORITY" SHALL MEAN THE POWER AUTHORITY OF THE STATE OF NEW
YORK.
(C) "POWER SOLUTIONS AWARD" OR "AWARD" SHALL MEAN AN ALLOCATION OF
POWER OR AN AWARD PAID BY THE AUTHORITY PURSUANT TO SECTION ONE THOUSAND
FIVE OF THE PUBLIC AUTHORITIES LAW IN THE FORM OF AN ELECTRIC BILL CRED-
IT ON THE INVOICE PROVIDED BY THE RECIPIENT'S LOCAL DISTRIBUTOR OF ELEC-
TRIC SERVICE PURSUANT TO THE POWER SOLUTIONS PROGRAM CREATED BY THIS
SECTION AND/OR THE PROVISION OF ENERGY RELATED PROJECTS, PROGRAMS AND
SERVICES AS DEFINED IN SUBDIVISION SIXTEEN OF SECTION ONE THOUSAND FIVE
OF THE PUBLIC AUTHORITIES LAW.
(D) "ELIGIBLE APPLICANT" SHALL MEAN AN ELIGIBLE BUSINESS, ELIGIBLE
SMALL BUSINESS, OR ELIGIBLE NOT-FOR-PROFIT CORPORATION AS DEFINED IN
THIS SECTION.
(E) "ELIGIBLE BUSINESS" SHALL MEAN A BUSINESS OTHER THAN A
NOT-FOR-PROFIT CORPORATION WHICH NORMALLY UTILIZES A MINIMUM PEAK ELEC-
TRIC DEMAND IN EXCESS OF FOUR HUNDRED KILOWATTS.
(F) "ELIGIBLE SMALL BUSINESS" SHALL MEAN A BUSINESS OTHER THAN A NOT-
FOR-PROFIT CORPORATION WHICH NORMALLY UTILIZES A MINIMUM PEAK ELECTRIC
DEMAND EQUAL TO OR LESS THAN FOUR HUNDRED KILOWATTS.
(G) "LOCAL DISTRIBUTOR OF ELECTRIC SERVICE" SHALL MEAN AN ELECTRIC
CORPORATION AS DEFINED IN SUBDIVISION THIRTEEN OF SECTION TWO OF THE
PUBLIC SERVICE LAW OR THE LONG ISLAND POWER AUTHORITY.
(H) "ELIGIBLE NOT-FOR-PROFIT CORPORATION" SHALL MEAN A CORPORATION
DEFINED IN SUBDIVISION FIVE OF SECTION ONE HUNDRED TWO OF THE
NOT-FOR-PROFIT CORPORATION LAW.
2. APPLICATIONS. (A) THE BOARD SHALL SOLICIT APPLICATIONS FOR AWARDS
UNDER THE POWER SOLUTIONS PROGRAM BY PUBLIC NOTICE BEGINNING ON JANUARY
FIRST, TWO THOUSAND ELEVEN. SUCH NOTICE MAY INCLUDE NEWSPAPER ADVER-
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TISEMENTS, PRESS RELEASES, WEBSITE POSTINGS, PAPER OR ELECTRONIC MAIL-
ING, AND/OR SUCH OTHER FORM AS THE BOARD FINDS APPROPRIATE IN CONSULTA-
TION WITH THE AUTHORITY.
(B) APPLICATIONS FOR THE POWER SOLUTIONS PROGRAM SHALL BE IN THE FORM
AND CONTAIN SUCH INFORMATION, EXHIBITS AND SUPPORTING DATA AS THE BOARD
PRESCRIBES IN CONSULTATION WITH THE AUTHORITY. A COPY OF EACH APPLICA-
TION RECEIVED SHALL BE MADE AVAILABLE FOR REVIEW BY EACH BOARD MEMBER.
(C) SUBJECT TO CONFIDENTIALITY REQUIREMENTS, UPON RECEIPT OF EACH
APPLICATION BY THE AUTHORITY, THE AUTHORITY SHALL PROMPTLY NOTIFY BY
ELECTRONIC MEANS THE GOVERNOR, THE SPEAKER OF THE ASSEMBLY, THE MINORITY
LEADER OF THE ASSEMBLY, THE TEMPORARY PRESIDENT OF THE SENATE, THE
MINORITY LEADER OF THE SENATE, AND EACH MEMBER OF THE STATE LEGISLATURE
IN WHOSE DISTRICT ANY PORTION OF THE FACILITY OWNED OR OPERATED BY THE
APPLICANT IS LOCATED. SUCH NOTICE SHALL PROVIDE THE NAME AND A
DESCRIPTION OF THE APPLICANT, AND THE ADDRESS OF THE APPLICANT'S FACILI-
TIES THAT WOULD RECEIVE AN AWARD UNDER THE PROGRAM. THE AUTHORITY SHALL
ALSO DEVELOP A LISTING WHICH CONTAINS THE NAME AND A DESCRIPTION OF EACH
APPLICANT, THE AWARD SOUGHT BY EACH APPLICANT, AND THE ADDRESS OF THE
FACILITIES FOR WHICH THE APPLICANT SEEKS THE AWARD, AND MAKE THE LISTING
AVAILABLE FOR PUBLIC REVIEW ON THE AUTHORITY'S WEBSITE.
3. REVIEW, APPLICABLE CRITERIA AND RECOMMENDATIONS. (A) THE BOARD
SHALL REVIEW APPLICATIONS SUBMITTED UNDER THE POWER SOLUTIONS PROGRAM.
THE BOARD SHALL MAKE AN INITIAL DETERMINATION OF WHETHER THE APPLICANT
IS AN ELIGIBLE APPLICANT. THE BOARD MAY RECOMMEND TO THE AUTHORITY THAT
A POWER SOLUTIONS PROGRAM AWARD BE AWARDED TO AN APPLICANT BASED ON AN
APPLICATION OF THE FOLLOWING CRITERIA:
(I) THE SIGNIFICANCE OF THE COST OF ELECTRICITY TO THE APPLICANT'S
OVERALL COST OF DOING BUSINESS, AND THE IMPACT THAT A POWER SOLUTIONS
AWARD WILL HAVE ON THE APPLICANT'S OPERATING COSTS;
(II) THE EXTENT TO WHICH A POWER SOLUTIONS AWARD WILL RESULT IN NEW
CAPITAL INVESTMENT IN THE STATE BY THE APPLICANT, THE EXTENT TO WHICH
THE APPLICANT WILL AGREE TO COMMIT TO MAKING NEW CAPITAL INVESTMENT AS A
CONDITION TO RECEIVING A POWER SOLUTIONS AWARD, AND ANY PREVIOUS CAPITAL
INVESTMENT UNDERTAKEN BY THE APPLICANT UNDER OTHER ECONOMIC DEVELOPMENT
PROGRAMS WHERE APPLICABLE;
(III) THE SIZE OF THE APPLICANT'S TOTAL PAYROLL (SALARY, BENEFITS AND
THE NUMBER OF JOBS) WITHIN THE STATE AND AT THE FACILITY THAT WOULD
RECEIVE THE AWARD;
(IV) THE NUMBER OF JOBS THAT WILL BE CREATED OR RETAINED WITHIN THE
STATE IN RELATION TO THE REQUESTED POWER SOLUTIONS AWARD, AND THE EXTENT
TO WHICH THE APPLICANT WILL AGREE TO COMMIT TO CREATING OR RETAINING
SUCH JOBS AS A CONDITION TO RECEIVING A POWER SOLUTIONS AWARD;
(V) WHETHER THE APPLICANT, DUE TO THE HIGH COST OF ELECTRICITY, IS AT
RISK OF CLOSING FACILITIES OR OPERATIONS IN THE STATE, RELOCATING FACIL-
ITIES OR OPERATIONS OUT OF THE STATE, OR LOSING A SIGNIFICANT NUMBER OF
JOBS IN THE STATE, IN THE ABSENCE OF A POWER SOLUTIONS AWARD;
(VI) THE SIGNIFICANCE OF THE APPLICANT'S FACILITY THAT WOULD RECEIVE
THE BENEFIT OF THE AWARD TO THE ECONOMY OF THE AREA IN WHICH SUCH FACIL-
ITY IS LOCATED;
(VII) THE EXTENT TO WHICH THE APPLICANT HAS PREVIOUSLY UNDERTAKEN
ENERGY AUDITS AND/OR INVESTED IN ENERGY EFFICIENCY MEASURES INCLUDING
CONSIDERATION OF THE TIMING OF SUCH AUDITS OR MEASURES, THE AMOUNT OF
INVESTMENTS IN ENERGY EFFICIENCY RELATIVE TO THE SIZE, NATURE AND
HISTORIC ENERGY CONSUMPTION, AND OTHER CAPITAL INVESTMENTS OF THE BUSI-
NESS, THE RELATIVE IMPROVEMENT IN ENERGY EFFICIENCY AND/OR NET ENERGY OR
FINANCIAL SAVINGS RESULTING FROM SUCH INVESTMENTS, AND SUCH OTHER
A. 11172 9
FACTORS AS THE BOARD MAY CONSIDER APPROPRIATE, AND/OR THE EXTENT TO
WHICH THE APPLICANT WILL AGREE, IF RECOMMENDED BY THE BOARD, TO COMMIT
TO MAKING COST EFFECTIVE TANGIBLE INVESTMENTS IN ENERGY EFFICIENCY MEAS-
URES;
(VIII) THE EXTENT TO WHICH THE APPLICANT'S OPERATIONS ARE CONSISTENT
WITH THE POLICIES AND GOALS OF THE STATE ENERGY PLAN;
(IX) THE EXTENT TO WHICH THE APPLICANT PREVIOUSLY RECEIVED BENEFITS
UNDER OTHER POWER-RELATED PROGRAMS OF THE AUTHORITY, AND THE APPLICANT'S
PRIOR PERFORMANCE UNDER SUCH PROGRAMS WHERE APPLICABLE;
(X) IN THE CASE OF A NOT-FOR-PROFIT CORPORATION, WHETHER IT PROVIDES
CRITICAL SERVICES OR SUBSTANTIAL BENEFITS TO THE LOCAL COMMUNITY;
(XI) THE EXTENT TO WHICH AN AWARD IS CONSISTENT WITH STATE, REGIONAL
AND LOCAL ECONOMIC DEVELOPMENT STRATEGIES AND SUPPORTED BY LOCAL UNITS
OF GOVERNMENT IN THE AREA IN WHICH THE BUSINESS IS LOCATED OR TO BE
LOCATED;
(XII) THE EXTENT TO WHICH AN AWARD MIGHT RESULT IN INEQUITY FOR AN
APPLICANT AS COMPARED TO ITS COMPETITORS WITHIN THE STATE;
(XIII) IMPACT OF CURRENT ECONOMIC CONDITIONS ON THE APPLICANT;
(XIV) THE BOARD MAY ALSO CONSIDER THE EXTENT TO WHICH THE APPLICANT
HAS INVESTED IN ONSITE POWER GENERATION FOR COMBINED HEAT AND POWER
AND/OR DISTRIBUTED GENERATION PURPOSES OR WILL AGREE, IF RECOMMENDED BY
THE BOARD, TO CONSIDER MAKING COST EFFECTIVE TANGIBLE INVESTMENTS IN
ONSITE POWER GENERATION FOR COMBINED HEAT AND POWER AND/OR DISTRIBUTED
GENERATION PURPOSES AS IDENTIFIED PURSUANT TO SUBDIVISION SEVENTEEN OF
SECTION ONE THOUSAND FIVE OF THE PUBLIC AUTHORITIES LAW AS A CONDITION
TO RECEIVING AN AWARD; PROVIDED HOWEVER, THAT IN NO EVENT SHALL THE
ABSENCE OF SUCH INVESTMENT OR CONSIDERATION COUNT AGAINST THE APPLI-
CANT'S ELIGIBILITY FOR AN AWARD; AND
(XV) THE EXTENT OF THE APPLICANT'S APPLICANT'S WILLINGNESS TO MAKE
JOBS AVAILABLE TO PERSONS DEFINED AS ELIGIBLE FOR SERVICES UNDER THE
FEDERAL WORKFORCE INVESTMENT ACT (P.L. 105-220) AND THE EXTENT OF THE
APPLICANT'S WILLINGNESS TO ENHANCE, TO THE DEGREE PRACTICABLE, THE
PARTICIPATION OF SMALL BUSINESS CONCERNS AND MINORITY AND WOMEN-OWNED
BUSINESSES CERTIFIED PURSUANT TO ARTICLE FIFTEEN-A OF THE EXECUTIVE LAW.
(B) A RECOMMENDATION BY THE BOARD THAT THE AUTHORITY PROVIDE A POWER
SOLUTIONS PROGRAM AWARD TO AN ELIGIBLE APPLICANT SHALL INCLUDE: (1) A
DESCRIPTION OF THE AWARD THAT THE BOARD HAS DETERMINED SHOULD BE AWARDED
TO SUCH APPLICANT, PROVIDED HOWEVER, THAT THE BOARD MAY RECOMMEND AN
AWARD THAT DIFFERS FROM THE AWARD REQUESTED BY AN ELIGIBLE APPLICANT;
(2) AN EFFECTIVE TERM OF CONTRACT BETWEEN THE ELIGIBLE APPLICANT AND THE
AUTHORITY WHICH SHALL NOT EXCEED SEVEN YEARS, PROVIDED HOWEVER THAT THE
TERM OF ANY SUCH CONTRACT SHALL NOT BECOME EFFECTIVE BEFORE JULY FIRST,
TWO THOUSAND ELEVEN; (3) THE DATE OF THE MANDATORY MIDCONTRACT COMPLI-
ANCE REVIEW AT WHICH TIME THE ELIGIBLE APPLICANT, IF FOUND IN COMPLIANCE
MAY APPLY FOR A SUBSEQUENT CONTRACT TO GO INTO EFFECT AT THE CONCLUSION
OF THE CURRENT CONTRACT AS LONG AS COMPLIANCE CONTINUES THROUGH THE
CONCLUSION OF SUCH CONTRACT; AND (4) SUCH OTHER TERMS AND CONDITIONS
THAT THE BOARD RECOMMENDS AS APPROPRIATE. SUCH TERMS AND CONDITIONS
SHALL INCLUDE PROVISIONS FOR EFFECTIVE PERIODIC AUDITS OF PROGRAM
PARTICIPANTS FOR THE PURPOSE OF DETERMINING CONTRACT AND PROGRAM COMPLI-
ANCE, AND THE PARTIAL OR COMPLETE WITHDRAWAL OF A POWER SOLUTIONS
PROGRAM AWARD IN THE CASE OF A PROGRAM PARTICIPANT THAT FAILS TO MAIN-
TAIN MUTUALLY AGREED UPON COMMITMENTS, INCLUDING BUT NOT LIMITED TO
LEVELS OF EMPLOYMENT, POWER UTILIZATION, CAPITAL INVESTMENTS, AND ENERGY
EFFICIENCY MEASURES.
A. 11172 10
(C) THE BOARD MAY BASE ITS RECOMMENDATION ON WHICH ELIGIBLE APPLICANTS
IT DETERMINES BEST MEET THE APPLICABLE CRITERIA; PROVIDED HOWEVER THAT
THE BOARD SHALL SET ASIDE A PORTION OF THE BENEFITS AVAILABLE UNDER THE
POWER SOLUTIONS PROGRAM IN AN AMOUNT NOT LESS THAN ONE HUNDRED MEGAWATTS
FOR ELIGIBLE SMALL BUSINESSES AND ELIGIBLE NOT-FOR-PROFIT CORPORATIONS.
(D) (I) A RECOMMENDATION FOR A POWER SOLUTIONS PROGRAM AWARD SHALL
QUALIFY AN APPLICANT TO ENTER INTO A CONTRACT WITH THE AUTHORITY TO
RECEIVE SUCH AWARD FROM THE AUTHORITY PURSUANT TO THE TERMS AND CONDI-
TIONS OF THE RECOMMENDATION OR ON SUCH OTHER TERMS AS THE AUTHORITY IN
CONSULTATION WITH THE BOARD DETERMINES TO BE APPROPRIATE INCLUDING SUCH
TERMS THAT MAY BE DEEMED APPROPRIATE AND/OR NECESSARY AS A RESULT OF THE
FINDINGS OF AN ENERGY AUDIT CONDUCTED PURSUANT TO SUBDIVISION SEVENTEEN
OF SECTION ONE THOUSAND FIVE OF THE PUBLIC AUTHORITIES LAW. PROVIDED
THAT AN APPLICANT'S FAILURE TO COMPLY WITH TERMS DEEMED NECESSARY AS A
RESULT OF THE FINDINGS OF SUCH AUDIT SHALL BE A BASIS TO FORFEIT AN
AWARD PROVIDED BY SUCH CONTRACT. IN THE EVENT THAT THE AWARD INCLUDES
THE PROVISION OF ENERGY RELATED PROJECTS, PROGRAMS AND SERVICES AS
DEFINED IN SUBDIVISION SIXTEEN OF SECTION ONE THOUSAND FIVE OF THE
PUBLIC AUTHORITIES LAW, THE CONTRACT SHALL ALLOW FOR REIMBURSEMENT FOR
COSTS TO AN ENTITY OTHER THAN THE POWER AUTHORITY OF THE STATE OF NEW
YORK SO LONG AS SUCH COSTS ARE DEEMED REASONABLE AND APPROPRIATE. SUCH
CONTRACTS SHALL PROVIDE THAT THE LOCAL DISTRIBUTOR OF ELECTRIC SERVICE
WILL PROVIDE CUSTOMER AND BILLING SERVICES UPON MUTUALLY AGREED TERMS
AND CONDITIONS.
(II) THE LOCAL DISTRIBUTOR OF ELECTRIC SERVICE SHALL PURCHASE SUCH
POWER AND DELIVER IT OR, WHERE A RECIPIENT ELECTS THE ENERGY SERVICE
COMPANY OPTION, TO PROVIDE DELIVERY SERVICES AT THE THEN CURRENT DELIV-
ERY RATE OR SERVICE CHARGE FOR ECONOMIC DEVELOPMENT POWER OR, IF NONE
EXISTS, AT A DELIVERY RATE SET BY THE APPROPRIATE JURISDICTIONAL REGULA-
TORY BODY.
(III) IF A LOCAL DISTRIBUTOR OF ELECTRIC SERVICE DECLINES TO PURCHASE
OR DELIVER POWER OFFERED UNDER THE POWER SOLUTIONS PROGRAM, IT SHALL
NONETHELESS DELIVER SUCH POWER TO THE CUSTOMERS SELECTED BY THE BOARD AT
THE CURRENT DELIVERY RATE FOR ECONOMIC DEVELOPMENT POWER OR, IF NONE
EXISTS, AT A DELIVERY RATE SET BY THE APPROPRIATE JURISDICTIONAL REGULA-
TORY BODY. REVENUE LOSSES RELATING TO SUCH TRANSACTIONS SHALL NOT GIVE
RISE TO THE TAX CREDITS AVAILABLE UNDER THE POWER SOLUTIONS PROGRAM WHEN
A UTILITY HAS DECLINED TO PURCHASE POWER ALLOCATED FOR SALE UNDER SUCH
PROGRAM.
(E) UPON APPROVAL OR DENIAL OF ANY APPLICATION FOR A POWER SOLUTIONS
PROGRAM AWARD, THE BOARD SHALL ISSUE IN WRITING A STATEMENT OF ITS FIND-
INGS AND CONCLUSIONS WITH RESPECT TO SUCH APPLICATION AND THE REASONS
FOR ITS APPROVAL OR DENIAL.
(F) NOTWITHSTANDING ANY OTHER PROVISION OF THIS SECTION, WITH RESPECT
TO APPLICANTS WHO AS OF JUNE FIRST, TWO THOUSAND ELEVEN, ARE IN SUBSTAN-
TIAL COMPLIANCE WITH ALL CONTRACTUAL COMMITMENTS AND RECEIVING BENEFITS
UNDER THE POWER FOR JOBS PROGRAM, BUT WOULD OTHERWISE NOT RECEIVE A
RECOMMENDATION FROM THE BOARD FOR A POWER SOLUTIONS PROGRAM AWARD, THE
BOARD SHALL RECOMMEND AND THE AUTHORITY SHALL PROVIDE AN AWARD OF THE
POWER SOLUTIONS PROGRAM AND SHALL PHASE OUT SUCH AWARD OVER A PERIOD NOT
TO EXCEED TWO YEARS ON THE FOLLOWING TERMS: IN THE FIRST YEAR, THE AWARD
SHALL BE IN AN AMOUNT THAT IS EQUAL TO SIXTY-SIX PERCENT OF THE VALUE OF
SUCH BENEFIT RECEIVED IN THE PRECEDING TWELVE MONTHS, AND IN THE SECOND
YEAR THE AWARD SHALL BE EQUAL TO THIRTY-THREE PERCENT OF THE VALUE OF
SUCH BENEFIT. NOTHING HEREIN SHALL PROHIBIT OR IN ANY WAY LIMIT ANY
APPLICANTS WHO ARE IN SUBSTANTIAL COMPLIANCE WITH ALL CONTRACTUAL
A. 11172 11
COMMITMENTS AND RECEIVING BENEFITS UNDER THE POWER FOR JOBS, ENERGY COST
SAVINGS BENEFIT, ECONOMIC DEVELOPMENT, HIGH LOAD FACTOR OR MUNICIPAL
DISTRIBUTION AGENCY PROGRAMS, WHETHER OR NOT THEY ARE RECIPIENTS OF A
TRANSITIONAL ELECTRICITY DISCOUNT PURSUANT TO THIS PARAGRAPH, FROM
APPLYING FOR OR RECEIVING AN ECONOMIC BENEFIT POWER AWARD FOR WHICH THEY
WOULD OTHERWISE QUALIFY, PROVIDED HOWEVER THAT THE RECEIPT OF AN ECONOM-
IC BENEFIT POWER AWARD BY AN APPLICANT SHALL BAR ANY FURTHER ELIGIBILITY
FOR A TRANSITIONAL ELECTRICITY DISCOUNT, AND NO APPLICANT SHALL RECEIVE
BOTH AN ECONOMIC BENEFIT POWER AWARD AND A TRANSITIONAL ELECTRICITY
DISCOUNT FOR THE SAME CALENDAR OR BILLING PERIOD.
(G) SUBJECT TO THE THIRTEENTH UNDESIGNATED PARAGRAPH OF SECTION ONE
THOUSAND FIVE OF THE PUBLIC AUTHORITIES LAW, AS ADDED BY THE CHAPTER OF
THE LAWS OF TWO THOUSAND TEN THAT ADDED THIS SECTION, THE BOARD SHALL
NOT RECOMMEND POWER SOLUTIONS PROGRAM AWARDS UNDER THE POWER SOLUTIONS
PROGRAM IN EXCESS OF FOUR HUNDRED EIGHTY-THREE MEGAWATTS OF ELECTRICITY
UNLESS ADDITIONAL MEGAWATTS BECOME AVAILABLE PURSUANT TO SUBDIVISION
FIVE OF SECTION ONE THOUSAND FIVE OF THE PUBLIC AUTHORITIES LAW. ANY
POWER SOLUTIONS AWARD WHICH IS RELINQUISHED OR WITHDRAWN SHALL BE AVAIL-
ABLE FOR REALLOCATION TO ELIGIBLE APPLICANTS.
(H) (1) THE BOARD SHALL SUBMIT TO THE DIRECTOR OF THE BUDGET, THE
CHAIRPERSON OF THE SENATE FINANCE COMMITTEE AND THE CHAIRPERSON OF THE
ASSEMBLY WAYS AND MEANS COMMITTEE AN EVALUATION OF THE SUCCESS OF EACH
ECONOMIC DEVELOPMENT POWER PROGRAM IT ADMINISTERS PREPARED BY AN INDE-
PENDENT THIRD PARTY. SUCH EVALUATION SHALL DETERMINE WHETHER THE
SERVICES PROVIDED HAVE HELPED RECIPIENTS TO SUCCEED, BASED ON A COMPAR-
ISON OF THE PERFORMANCE OF THE RECIPIENTS AGAINST THE NORMS OF THEIR
SPECIFIC INDUSTRY, AND SHALL ASSESS THE EFFECTIVENESS, IF ANY, OF EACH
ECONOMIC DEVELOPMENT POWER PROGRAM. SUCH AN EVALUATION SHALL BE SUBMIT-
TED BY DECEMBER THIRTY-FIRST, TWO THOUSAND FOURTEEN AND BY DECEMBER
THIRTY-FIRST EVERY FIVE YEARS THEREAFTER.
(2) BETWEEN EVALUATION DUE DATES, THE BOARD SHALL MAINTAIN THE NECES-
SARY RECORDS AND DATA REQUIRED TO SATISFY SUCH EVALUATION REQUIREMENTS
AND TO SATISFY INFORMATION REQUESTS RECEIVED FROM THE DIRECTOR OF THE
BUDGET, THE CHAIRPERSON OF THE SENATE FINANCE COMMITTEE AND THE CHAIR-
PERSON OF THE ASSEMBLY WAYS AND MEANS COMMITTEE BETWEEN SUCH EVALUATION
DUE DATES.
S 8. Subparagraph 2 of paragraph g of the ninth undesignated paragraph
of section 1005 of the public authorities law, as amended by chapter 217
of the laws of 2009, is amended to read as follows:
2. The authority, as deemed feasible and advisable by the trustees, is
authorized to make payments to recipients of the power for jobs elec-
tricity savings reimbursements, POWER SOLUTIONS PROGRAM ELECTRICITY
SAVINGS REIMBURSEMENTS AND/OR PAYMENTS and additional annual voluntary
contributions into the state treasury to the credit of the general fund.
The authority shall make such contributions to the state treasury no
later than ninety days after the end of the calendar year in which a
credit under subdivision nine of section one hundred eighty-six-a of the
tax law is available: (a) for the additional three hundred megawatts of
power under the fourth phase of the program provided under chapter
sixty-three of the laws of two thousand and under the fifth phase for
the additional one hundred eighty-three megawatts provided under chapter
two hundred twenty-six of the laws of two thousand two; [and] (b) for
any extension of any contract for allocations under the fourth phase of
the program and under the fifth phase of the program; AND (C) FOR MEGA-
WATTS ALLOCATED UNDER THE POWER SOLUTIONS PROGRAM. Payments for any
electricity savings reimbursement under section one hundred eighty-nine
A. 11172 12
OR ONE HUNDRED EIGHTY-EIGHT-A of the economic development law shall be
made pursuant to such section. Such annual contributions shall be equal
to fifty percent of the total amount of such credits available each year
to all local distributors of electricity. In addition, such authori-
zation for contribution in state fiscal year two thousand two--two thou-
sand three shall be equal to the total amount of credit available in two
thousand one and two thousand two; and such authorization for contrib-
ution in state fiscal year two thousand three--two thousand four shall
be equal to the total amount of credit available in two thousand three;
under subdivision nine of section one hundred eighty-six-a of the tax
law under the fourth phase of the program for the additional three
hundred megawatts provided under chapter sixty-three of the laws of two
thousand and under the fifth phase for the additional one hundred eight-
y-three megawatts provided under chapter two hundred twenty-six of the
laws of two thousand two. In state fiscal year two thousand four--two
thousand five, such authorized annual contribution shall be equal to one
hundred percent of the total amount of such credits available each year
to all local distributors of electricity. Such authorization for
contribution in state fiscal years two thousand four and two thousand
five shall be equal to the total amount of credit available in two thou-
sand four and two thousand five; under subdivision nine of section one
hundred eighty-six-a of the tax law under the fourth phase of the
program for the additional three hundred megawatts provided under chap-
ter sixty-three of the laws of two thousand and under the fifth phase
for the additional one hundred eighty-three megawatts provided under
chapter two hundred twenty-six of the laws of two thousand two. In addi-
tion, such authorization for contribution for any extension of any
contract for allocations under the fourth phase of the program and under
the fifth phase of the program in each state fiscal year shall be equal
to the total amount of credit or reimbursement available in state fiscal
year two thousand four--two thousand five, state fiscal year two thou-
sand five--two thousand six and two thousand six--two thousand seven.
Additionally, notwithstanding any other section of law, the authority is
authorized to make a contribution in an amount related to total amounts
of credit received under phases one, two, three, four and five of the
program. In no case shall the contribution for state fiscal year two
thousand five--two thousand six be less than seventy-five million
dollars. The contribution for state fiscal year two thousand six--two
thousand seven shall be one hundred million dollars. The contribution
for state fiscal year two thousand seven--two thousand eight shall be
thirty million dollars. The contribution for state fiscal year two thou-
sand eight--two thousand nine shall be twenty-five million dollars. The
contribution for state fiscal year two thousand nine--two thousand ten
shall be twelve million five hundred thousand dollars. THE CONTRIBUTION
FOR EACH STATE FISCAL YEAR BEGINNING WITH TWO THOUSAND TEN--TWO THOUSAND
ELEVEN SHALL BE EQUAL TO THE AMOUNT OF THE CREDITS ALLOWED PURSUANT TO
SUBDIVISION NINE OF SECTION ONE HUNDRED EIGHTY-SIX-A OF THE TAX LAW. The
department of public service shall estimate the payment due by the end
of the calendar year in which the credit is available. In no case shall
the amount of the total annual contributions for the years during which
delivery and sale of power associated with all power for jobs phases and
any extensions thereof takes place exceed the aggregate total of four
hundred [sixty-one] SEVENTY-FOUR million [five hundred thousand]
dollars.
A. 11172 13
S 9. The twelfth undesignated paragraph of section 1005 of the public
authorities law is REPEALED and a new undesignated paragraph is added to
read as follows:
BEGINNING NO LATER THAN JULY FIRST, TWO THOUSAND ELEVEN, THE AUTHORITY
IS AUTHORIZED AND DIRECTED, AS DEEMED FEASIBLE AND ADVISABLE BY THE
TRUSTEES, TO MAKE ANNUAL PAYMENTS IN AN AMOUNT OF UP TO ONE HUNDRED
TWENTY MILLION DOLLARS FOR POWER SOLUTIONS PROGRAM AWARDS UPON THE
RECOMMENDATION OF THE ECONOMIC DEVELOPMENT POWER ALLOCATION BOARD UNDER
THE POWER SOLUTIONS PROGRAM AS PROVIDED IN SECTION ONE HUNDRED
EIGHTY-EIGHT-A OF THE ECONOMIC DEVELOPMENT LAW. NOT LESS OFTEN THAN
ANNUALLY, THE AUTHORITY SHALL IDENTIFY AND ADVISE THE ECONOMIC DEVELOP-
MENT POWER ALLOCATION BOARD OF THE AVAILABILITY OF THE FUNDS FOR SUCH
AWARD.
S 10. Subdivision 5 of section 1005 of the public authorities law, as
amended by chapter 294 of the laws of 1968, paragraph g as amended by
chapter 369 of the laws of 1974, is amended to read as follows:
5. To develop, maintain, manage and operate those parts of the Niagara
and Saint Lawrence hydroelectric projects owned or controlled by it in
such manner as to give effect to the policy hereby declared (and all
plans and acts, and all contracts for the use, sale, transmission and
distribution of the power generated by such projects, shall be made in
the light of, consistent with and subject to this policy), namely, that
such projects shall be in all respects for the aid, improvement, and
benefit of commerce and navigation in, through, along and past the
Niagara river, the Saint Lawrence river and the international rapids
section thereof, and that in the development of hydro-electric power
therefrom such projects shall, UNTIL THAT TIME WHEN THE AUTHORITY IMPLE-
MENTS THE ENERGY EFFICIENCY MEASURES FOR DOMESTIC AND RURAL CUSTOMERS
REQUIRED BY THIS SUBDIVISION be considered primarily as for the benefit
of the people of the state as a whole and particularly the domestic and
rural consumers to whom the power can economically be made available,
and accordingly that sale to and use by industry shall be a secondary
purpose UNTIL THE AUTHORITY IMPLEMENTS THE ENERGY EFFICIENCY MEASURES
FOR DOMESTIC AND RURAL CUSTOMERS REQUIRED BY THIS SUBDIVISION, AT WHICH
TIME THE SALE AND USE BY INDUSTRY MAY BECOME A PRIMARY PURPOSE, to be
utilized principally to secure a sufficiently high load factor and
revenue returns to permit domestic and rural use at the lowest possible
rates and in such manner as to encourage [increased] EFFICIENT domestic
and rural use of electricity. In furtherance of this policy and to
secure a wider distribution of such power and use of the greatest value
to the general public of the state, the authority shall in addition to
other methods which it may find advantageous make provision so that
municipalities and other political [sub-divisions] SUBDIVISIONS of the
state now or hereafter authorized by law to engage in the distribution
of electric power may secure a reasonable share of the power generated
by such projects, and shall sell the same or cause the same to be sold
to such municipalities and political subdivisions at prices representing
cost of generation, plus capital and operating charges, plus a fair cost
of transmission, all as determined by the trustees, and subject to
conditions which shall assure the resale of such power to domestic and
rural consumers at the lowest possible price, provided, however, that in
disposing of hydro-electric power pursuant to and in furtherance of the
aforementioned policy and purposes, appropriate provision may also be
made to allocate a reasonable share of project power to agencies created
or designated by other states and authorized to resell the power to
users under the same terms and conditions as power is disposed of in New
A. 11172 14
York state. To that end, the authority may provide in any contract or
contracts which it may make for the sale, transmission and distribution
of the power that the purchaser, transmitter or distributor shall
construct, maintain and operate, on such terms as the authority may deem
proper, such connecting lines as may be necessary for transmission of
the power from main transmission lines to such municipalities or poli-
tical subdivisions.
Contracts for the sale, transmission and distribution of power gener-
ated by such projects shall provide for the effectuation of the forego-
ing policy and shall provide:
a. Payment of all operating and maintenance expenses of the project.
b. Interest on and amortization and reserve charges sufficient within
fifty years of the date of issuance to retire the bonds of the power
authority issued for the project.
c. Continuous control and operation of the project by the authority.
d. The effectuation of the policy declared in this [sub-paragraph]
SUBPARAGRAPH.
e. Full and complete disclosure to the authority of all factors of
cost in the transmission and distribution of power, so that rates to
consumers may be fixed initially in the contract and may be adjusted
from time to time on the basis of true cost data, provided that in
fixing such cost of transmission and distribution no account shall be
given to any franchise value, going value or good-will based upon the
existence of the contract and the availability of the power for sale by
the transmitting or distributing company or any company associated ther-
ewith.
f. Periodic revisions of the service and rates to consumers on the
basis of accurate cost data obtained by such accounting methods and
systems as shall be approved by the trustees and in furtherance and
effectuation of the policy declared in this [sub-paragraph]
SUBPARAGRAPH.
g. That the rates, services and practices of the purchasing, transmit-
ting and/or distributing public agencies or companies in respect to the
power generated by such projects shall be governed by the provisions and
principles established in the contract, and not by regulations of the
public service commission or by general principles of public service law
regulating rates, services and practices and that in the event any such
public agencies or companies which purchase power from the authority
shall sell any such power for resale, such sale for resale shall be made
at rates no higher than those at which the power was purchased from the
authority.
h. The rate structures agreed upon in such contract may provide
different rates for different localities, classes of consumers, and
amounts of current consumed, and for changes in the rates resulting from
variation in operating costs and fixed charges.
i. For the cancellation and termination of any such contract upon
violation of the terms thereof by the purchasing, transmitting or
distributing public agency or company, or any subsidiary or associate
thereof.
j. For such security for performance as the authority may deem practi-
cable and advisable, including provisions assuring the continuance of
service by the purchasing, transmitting and/or distributing public agen-
cies or companies and/or the use of their facilities for such service
and/or the continuance of an outlet and adequate market for the power
generated by such projects.
A. 11172 15
k. Such other terms not inconsistent with the provisions and policy of
this title as the authority may deem advisable.
THE AUTHORITY, IN CONJUNCTION WITH ANY INVESTOR OWNED UTILITY THAT
PURCHASES HYDROELECTRIC POWER FROM THE AUTHORITY'S NIAGARA AND ST.
LAWRENCE POWER PROJECTS FOR RURAL AND DOMESTIC USES PURSUANT TO THIS
SUBDIVISION, SHALL ESTABLISH AND OFFER AN OPTIONAL PROGRAM TO THOSE
DOMESTIC AND RURAL CONSUMERS AS REFERENCED IN THIS SUBDIVISION TO
INSTALL, IMPLEMENT OR PROVIDE ENERGY EFFICIENCY MEASURES OR IMPROVEMENTS
IN ORDER TO REDUCE THE AMOUNT OF ENERGY CONSUMED BY SUCH DOMESTIC AND
RURAL CONSUMERS. AFTER SUCH MEASURES OR IMPROVEMENTS ARE MADE, SUCH
HYDROELECTRIC POWER FROM THE AUTHORITY'S NIAGARA AND ST. LAWRENCE POWER
PROJECTS SHALL NO LONGER BE MADE AVAILABLE TO THOSE DOMESTIC AND RURAL
CONSUMERS THAT HAVE REQUESTED, ACCEPTED AND RECEIVED THE ENERGY EFFI-
CIENCY MEASURES OR IMPROVEMENTS AND THOSE AMOUNTS OF HYDROELECTRIC POWER
PREVIOUSLY PROVIDED TO SUCH RURAL AND DOMESTIC CONSUMERS SHALL BE MADE
AVAILABLE TO RECOVER THE COSTS OF SUCH EFFICIENCY MEASURES OR IMPROVE-
MENTS AND TO FINANCE THE POWER SOLUTIONS PROGRAM ESTABLISHED IN ARTICLE
SIX OF THE ECONOMIC DEVELOPMENT LAW. SUCH ENERGY EFFICIENCY MEASURES
SHALL, TO THE EXTENT PRACTICABLE, BE MADE IN CONJUNCTION WITH OTHER
ENERGY EFFICIENCY PROGRAMS OFFERED BY INVESTOR OWNED UTILITIES, STATE
AGENCIES AND AUTHORITIES INCLUDING BUT NOT LIMITED TO THE NEW YORK STATE
ENERGY AND RESEARCH DEVELOPMENT AUTHORITY AND THE POWER AUTHORITY OF THE
STATE OF NEW YORK.
S 11. The opening paragraph of subdivision 13 of section 1005 of the
public authorities law, as amended by chapter 645 of the laws of 2006,
is amended to read as follows:
Notwithstanding any other provision of law to the contrary but subject
to the terms and conditions of federal energy regulatory commission
licenses, to allocate or reallocate directly or by sale for resale, two
hundred fifty megawatts of firm Niagara project hydroelectric power as
"expansion power" and four hundred forty-five megawatts of firm Niagara
project hydroelectric power as "replacement power" to businesses within
the state located within thirty miles of the Niagara project, and four
hundred ninety megawatts of firm and interruptible power from the Saint
Lawrence-FDR project as "preservation power" sold to businesses located
within the counties of Jefferson, Saint Lawrence and Franklin, provided
that the amount of expansion power allocated to businesses in Chautauqua
county on January first, nineteen hundred eighty-seven shall continue to
be allocated in such county [and, provided further that up to seventy
megawatts of replacement power, up to thirty-eight and six-tenths mega-
watts of preservation power from the Saint Lawrence-FDR project which is
relinquished or withdrawn after the effective date of chapter three
hundred thirteen of the laws of two thousand five which amended this
subdivision and, for the period ending on December thirty-first, two
thousand six, up to twenty megawatts of other power from the Saint
Lawrence-FDR project which is unallocated as of the effective date of
chapter three hundred thirteen of the laws of two thousand five which
amended this subdivision, shall be allocated by the authority together
with such other funds of the authority as the trustees deem feasible and
advisable for energy cost savings benefits pursuant to the twelfth
undesignated paragraph of this section. Provided, however, that the
amount of replacement, preservation power, or the additional twenty
megawatts of Saint Lawrence-FDR power for the period ending December
thirty-first, two thousand six made available for such purpose, used for
energy cost savings benefits that are relinquished by or withdrawn from
a recipient thereof shall be offered by the authority proportionately
A. 11172 16
for a period of six months for reallocation to applicants who qualify
respectively for replacement or preservation power allocations as
provided in this subdivision. If such power is not allocated within such
period it shall be allocated for the purpose of energy cost savings
benefits pursuant to subdivision (h) of section one hundred eighty-three
of the economic development law]. The authority shall negotiate
contracts on reasonable terms and conditions to renew or extend every
permanent contract allocation of expansion power in effect on the effec-
tive date of this subdivision and, to the extent consistent with such
contracts, the authority shall negotiate contracts on reasonable terms
and conditions to extend or renew all other allocations or allotments of
such power in effect on such date. The authority shall negotiate
contracts on reasonable terms and conditions to renew or extend for a
period of at least five years every permanent contract allocation of
replacement power in effect on the effective date of chapter three
hundred thirteen of the laws of two thousand five which added this
sentence and that would expire by its terms on or before the end of the
initial federal energy regulatory commission license for the Niagara
project; provided that, in negotiating the terms and conditions of such
contracts, the authority may consider a business' compliance with all
current contractual obligations, including employment and power usage
commitments. Contracts entered into pursuant to this subdivision shall
contain reasonable provisions providing for the partial or complete
withdrawal of the power in the event the recipient fails to maintain
mutually agreed levels of employment, investment, and power utilization.
Expansion or replacement power relinquished by businesses or withdrawn
by the authority shall be allocated directly or by sale for resale by
the authority to businesses within the state located within thirty miles
of the Niagara project provided, that the amount of power allocated to
businesses in Chautauqua county on January first, nineteen hundred
eighty-seven shall be allocated in such county. Preservation power that
is relinquished by businesses or withdrawn by the authority shall be
allocated directly or by sale for resale by the authority within the
counties of Jefferson, Saint Lawrence and Franklin. Allocations made
pursuant to this paragraph shall be made in accordance with criteria
established by the trustees. Such criteria shall address the expansion
of industry and employment pursuant to paragraph (a) of this subdivision
and the revitalization of existing industry pursuant to paragraph (b) of
this subdivision.
S 12. Paragraph (a) of subdivision 16 of section 1005 of the public
authorities law, as added by chapter 477 of the laws of 2009, is amended
to read as follows:
(a) As deemed feasible and advisable by the trustees, to finance and
design, develop, construct, implement, provide and administer energy-re-
lated projects, programs and services for any public entity and any
recipient of the economic development power, expansion power, replace-
ment power, preservation power, high load factor power, municipal
distribution agency power, [and] the power for jobs AND THE POWER
SOLUTIONS programs administered by the authority. In establishing and
providing high performance and sustainable building programs and
services authorized by this subdivision, the authority is authorized to
consult standards, guidelines, rating systems, and/or criteria estab-
lished or adopted by other organizations, including but not limited to
the United States green building council under its leadership in energy
and environmental design (LEED) programs, the green building initi-
ative's green globes rating system, and the American National Standards
A. 11172 17
Institute. The source of any financing and/or loans provided by the
authority for the purposes of this subdivision may be the proceeds of
notes issued pursuant to section one thousand nine-a of this title, the
proceeds of bonds issued pursuant to section one thousand ten of this
title, or any other available authority funds.
S 13. Section 1005 of the public authorities law is amended by adding
two new subdivisions 17 and 18 to read as follows:
17. TO PROMOTE THE CONSERVATION AND EFFICIENT USE OF ELECTRICITY, THE
POWER AUTHORITY OF THE STATE OF NEW YORK SHALL UNDERTAKE OR CAUSE TO
UNDERTAKE AN ENERGY AUDIT OF EVERY APPLICANT THAT THE BOARD HAS RECOM-
MENDED TO RECEIVE AN AWARD UNDER THE POWER SOLUTIONS PROGRAM AND ENERGY
COST SAVINGS BENEFITS PROVIDED FURTHER THAT SUCH AUDITS SHALL BE
CONDUCTED PRIOR TO AND AS A CONDITION OF RECEIVING A CONTRACT FOR AN
AWARD. SUCH AUDIT SHALL BE CONDUCTED WITHIN TWO YEARS AFTER RECEIVING A
CONTRACT FOR AN AWARD. THE AUDITS SHALL ASSESS (I) A RECIPIENT'S ELEC-
TRICITY USE TO DETERMINE BASED ON A COMPARISON OF THE NORMS OF THEIR
SPECIFIC INDUSTRY, COST-EFFECTIVE MEASURES THAT COULD BE EMPLOYED TO
REDUCE ENERGY COSTS, ENERGY USE, OR IMPROVE THE EFFICIENCY OF BUILDINGS,
BUILDING SYSTEMS, EQUIPMENT, PROCESSES OR OPERATIONS; AND (II) THE
FEASIBILITY OF ONSITE POWER GENERATION FOR COMBINED HEAT AND POWER
AND/OR DISTRIBUTED GENERATION PURPOSES. APPLICANTS' ENERGY AUDITS
PERFORMED UP TO FIVE YEARS PRIOR TO THE DATE OF APPLICATION SUBMISSION
MAY BE CONSIDERED BY THE BOARD IN SATISFACTION OF THE REQUIREMENTS OF
THIS SUBDIVISION. COSTS OF THE ENERGY AUDITS SHALL BE PAID BY THE POWER
AUTHORITY OF THE STATE OF NEW YORK AS DEEMED FEASIBLE AND ADVISABLE BY
THE BOARD. FOR PURPOSES OF IMPLEMENTING THIS SUBDIVISION ONLY, THE POWER
AUTHORITY OR ITS AGENT IS AUTHORIZED TO APPLY FOR FUNDING FROM ANY
PROGRAM THAT PAYS ALL OR SOME OF THE COSTS OF SUCH AUDITS, AND THE POWER
AUTHORITY OR ITS AGENT SHALL BE ENTITLED TO RECEIVE SUCH FUNDING AS IF
THE RECIPIENT OF SUCH LOW-COST POWER HAD APPLIED FOR THE FUNDING DIRECT-
LY.
18. A. FOR THE PURPOSE OF FURNISHING THE STATE WITH SYSTEMATIC INFOR-
MATION REGARDING THE STATUS AND THE ACTIVITIES OF THE AUTHORITY, THE
AUTHORITY SHALL SUBMIT TO THE GOVERNOR, THE CHAIRPERSON OF THE SENATE
FINANCE COMMITTEE, THE CHAIRPERSON OF THE ASSEMBLY WAYS AND MEANS
COMMITTEE AND THE STATE COMPTROLLER, WITHIN NINETY DAYS AFTER THE END OF
ITS FISCAL YEAR, A COMPLETE AND DETAILED ANNUAL REPORT ON THE ECONOMIC
DEVELOPMENT ASSISTANCE IT ADMINISTERS. SUCH ANNUAL REPORT SHALL INCLUDE,
BUT NOT BE LIMITED TO, THE FOLLOWING INFORMATION:
(I) THE NUMBER OF COMMERCIAL/INDUSTRIAL RECIPIENTS OF ECONOMIC DEVEL-
OPMENT ASSISTANCE BENEFITS, THE ECONOMIC DEVELOPMENT REGION, WHERE THE
RECIPIENTS ARE LOCATED, WHAT TYPE AND HOW MUCH ASSISTANCE IS PROVIDED,
MEGAWATTS OF ELECTRICITY AWARDED, LENGTH OF CURRENT CONTRACT, CURRENT
CONTRACT COMPLIANCE STATUS, LAST AUDIT, NUMBER OF JOBS RETAINED AND/OR
ADDED IN THE FISCAL YEAR, APPROXIMATE ENERGY EFFICIENCY SAVINGS AND
AMOUNT OF POWER REALLOCATED FROM PREVIOUS YEARS DUE TO FORFEITED BENE-
FITS;
(II) COST TO THE AUTHORITY TO PROVIDE ECONOMIC DEVELOPMENT ASSISTANCE
BENEFITS DURING THE PREVIOUS FISCAL YEAR;
(III) SOURCES, TYPES AND COSTS OF POWER OBTAINED FOR THE ECONOMIC
DEVELOPMENT ASSISTANCE IT ADMINISTERS, INCLUDING, BUT NOT LIMITED TO, AN
EXPLANATION OF HOW POWER IS OBTAINED BY THE AUTHORITY TO SUPPORT THE
ECONOMIC DEVELOPMENT ASSISTANCE IT ADMINISTERS, THE PERCENTAGE OF LONG-
AND SHORT-TERM POWER PURCHASE AGREEMENTS USED AND DAY-AHEAD AND SPOT
MARKET PURCHASES, AND A SUMMARY OF NEW YORK INDEPENDENT SYSTEM OPERATOR
(NYISO) OR ITS SUCCESSOR CHARGES PAID BY AUTHORITY CUSTOMERS; AND
A. 11172 18
(IV) RECOMMENDATIONS AS TO IMPROVEMENTS TO AND/OR EXPANSION OF THE
POWER SOLUTIONS PROGRAM.
B. IN ADDITION, THE AUTHORITY SHALL REPORT TO THE PERSONS IN PARAGRAPH
A OF THIS SUBDIVISION ON THE STATUS OF ITS ENERGY EFFICIENCY PROGRAM
CONDUCTED PURSUANT TO SUBDIVISION FIVE OF SECTION ONE THOUSAND FIVE OF
THE PUBLIC AUTHORITIES LAW.
S 14. Subdivision 9 of section 186-a of the tax law, as amended by
chapter 217 of the laws of 2009, is amended to read as follows:
9. Notwithstanding any other provision of this chapter or any other
law to the contrary, for taxable periods nineteen hundred ninety-seven
[through] and [including two thousand ten] THEREAFTER, any utility which
delivers power under the power for jobs program OR THE POWER SOLUTIONS
PROGRAM, as established by section one hundred eighty-nine OR ONE
HUNDRED EIGHTY-EIGHT-A of the economic development law, shall be allowed
a credit, subject to the limitations thereon contained in this subdivi-
sion, against the tax imposed under this section equal to net lost
revenues from the delivery of power under such power for jobs program OR
POWER SOLUTIONS PROGRAM. Net lost revenues means the "net receipts"
less "net utility revenue" from such delivery of power. For purposes of
this subdivision, "net receipts" shall mean the amount that the utility
would have otherwise received from customers receiving power pursuant to
allocations by the New York state economic development power allocation
board in accordance with section one hundred eighty-nine OR ONE HUNDRED
EIGHTY-EIGHT-A of the economic development law, or from customers whose
allocation has been transferred to an energy service company, or from
energy service companies to which such allocation has been transferred,
pursuant to its tariff supervised by the public service commission for
substantially comparable service otherwise applicable to such customers
or energy service companies in the absence of such designation, less the
utility's annual average incremental short-term variable and capacity
costs of providing such power in the absence of such purchase. For the
purposes of this subdivision, "net utility revenue" shall mean the
revenues the utility actually receives in accordance with such section
one hundred eighty-nine OR ONE HUNDRED EIGHTY-EIGHT-A from such custom-
ers so designated by the New York state economic development power allo-
cation board or from customers whose allocation has been transferred to
an energy service company, or from the energy service companies to which
a power for jobs OR POWER SOLUTIONS allocation has been transferred,
less the utility's cost of such power under such program. Provided,
however, that any credit under this section shall be used only with
respect to the same taxable year during which such credit arose and
shall not be capable of being carried forward or backward to any other
taxable period. Nor shall any credit be allowed to any utility for the
total amount of power, expressed in kilowatt hours, purchased by the
customers of such utility under such program during the taxable period
that exceeds the prorated "baseline energy use" by all customers of that
utility purchasing power under such program during the taxable period.
"Baseline energy use" with respect to each customer shall mean the larg-
est amount of kilowatt hours of energy used by such customer during any
twelve consecutive month period occurring during the preceding thirty
months immediately preceding the New York state economic development
power allocation board's recommendation of such customer's application,
prorated to reflect the length of time of the customer's participation
in such program during the taxable period. Provided further, however,
that in accordance with subdivision (k) of section one hundred eighty-
nine OR SUBPARAGRAPH (III) OF PARAGRAPH (D) OF SUBDIVISION THREE OF
A. 11172 19
SECTION ONE HUNDRED EIGHTY-EIGHT-A of the economic development law no
tax credit shall be available for any revenue losses when a utility has
declined to purchase power allocated for sale under such program. No
electric corporation shall be allowed the tax credit authorized by this
subdivision until it shall file a certificate from the department of
public service for the period covered by the return verifying that the
calculation of such tax credit complies with this subdivision and the
department of public service has approved such certificate and forwarded
a copy of such approved certificate to the commissioner or any amended
certificate resulting from the need for correction. The credit allowed
by this subdivision shall not be applicable in calculating any other tax
imposed or authorized to be imposed by this chapter or any other law,
and the amount of the tax surcharge imposed under section one hundred
eighty-six-c of this article shall be calculated and payable as if the
credit provided for by this subdivision were not allowed.
S 15. Severability clause. If any clause, sentence, paragraph, subdi-
vision, section or part of this act shall be adjudged by any court of
competent jurisdiction to be invalid, such judgment shall not affect,
impair, or invalidate the remainder thereof, but shall be confined in
its operation to the clause, sentence, paragraph, subdivision, section
or part thereof directly involved in the controversy in which such judg-
ment shall have been rendered. It is hereby declared to be the intent of
the legislature that this act would have been enacted even if such
invalid provisions had not been included therewith.
S 16. Notwithstanding the provisions of article 5 of the general
construction law, the provisions of chapter 316 of the laws of 1997, and
section 7 of chapter 645 of the laws of 2006, are hereby revived and
shall continue in full force and effect as such provisions existed on
May 15, 2010.
S 17. This act shall take effect immediately and shall be deemed to
have been in full force and effect on and after May 15, 2010; provided
that the amendments to section 189 of the economic development law made
by sections two and three of this act shall not affect the repeal of
such section and shall be deemed repealed therewith; and provided
further, that the amendments to the ninth undesignated paragraph and
paragraph (a) of subdivision sixteen of section 1005 of the public
authorities law made by sections eight and twelve of this act, respec-
tively, shall not affect the expiration of such provisions and shall
expire therewith.