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This entry was published on 2022-04-22
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SECTION 1269-B
Capital program plans; approvals; effect of disapproval
Public Authorities (PBA) CHAPTER 43-A, ARTICLE 5, TITLE 11
§ 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.

* (c) The authority shall publish data pertaining to capital programs
of the authority and any amendments to such programs as required by this
section on the authority's website in a common, machine readable format,
as defined by executive order number ninety-five of two thousand
thirteen, "Using Technology to Promote Transparency, Improve Government
Performance and Enhance Citizen Engagement" or any successor order. Such
data shall include, but not be limited to:

(i) all data required by paragraph (c) of subdivision one of this
section, including estimates of capital budget required by element for
an approved capital program and expected sources of such funding for the
entire capital program; and

(ii) all data required by subdivision two of this section, including
proposed annual commitments for individual capital elements required.

* NB Effective October 6, 2022

* (d) At a minimum, individual capital project data for projects that
are committed for construction shall be included in a capital program
dashboard maintained by the authority on its website. Any summary views
provided on the website shall include the original budgets at the time
of project commitment when scope and budget are defined, project scopes,
and schedules, in addition to current or amended budgets, project
scopes, and schedules. Data pertaining to individual projects shall
include, but not be limited to:

(i) the capital project identification number delineated by agency,
category, element and project as used in the capital program;

(ii) the capital plan years;

(iii) the agency or authority undertaking the project;

(iv) a project description;

(v) the project location where appropriate;

(vi) the capital needs code of the project, such as state of good
repair, normal replacement, system improvement, system expansion or
other category;

(vii) budget information including the original budget at the time of
project commitment when scope and budget are defined, all amendments,
the current budget and planned annual allocations; and

(viii) a schedule for project delivery including original, amended and
current start and completion dates as projects develop at each phase.

The status of projects shall be provided and state the current phase
of the project, such as planning, design, construction or completion,
and shall state how far the project has progressed as measured in
percentage by expenditure. The dashboard shall measure progress based on
original budgets at the time of project commitment when scope and budget
are defined. At a minimum, all changes to planned budgets of greater
than ten percent, significant project scope or a three month or more
change in schedule shall be provided in narrative form and describe the
reason for each change or amendment. The dashboard shall include a
glossary or data dictionary which contains plain language descriptions
of the data and information provided on the dashboard. The dashboard
shall be updated, at a minimum, on a quarterly basis, and all data
fields available on the dashboard shall be made available for download
on the authority's website in a single tabular data file in a common,
machine readable format. Capital dashboard data shall also be made
available on the data.ny.gov website or such other successor website
maintained by, or on behalf of, the state, as deemed appropriate by the
New York state office of information technology services under executive
order number ninety-five of two thousand thirteen, or any successor
agency or order.

* NB Effective October 6, 2022

* (e) The data required to be published pursuant to this subdivision
shall be made in a single tabular data file in a common, machine
readable format and shall be accessible on the authority's website and
the website data.ny.gov or such other successor website maintained by,
or on behalf of, the state, as deemed appropriate by the New York state
office of information technology services under executive order number
ninety-five of two thousand thirteen, or any successor agency or order.

* NB Effective October 6, 2022

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.

11. In formulating their capital program plans, the authority and its
affiliates and subsidiaries shall consider bicycle and pedestrian
accessibility.