Minutes of the Special Meeting of the Power Authority of the State of New York held via videoconference at the following participating locations at approximately 9:35 a.m.
1) New York Power Authority, 123 Main Street, White Plains, NY
2) New York Power Authority, 95 Perry Street, Buffalo, NY
3) Harris Beach LLP, 99 Garnsey Road, Pittsford, NY
The Members of the Board were present were:
Michael J. Townsend, Chairman
Jonathan F. Foster, Vice Chairman
D. Patrick Curley, Trustee
Eugene L. Nicandri, Trustee
Mark O’Luck, Trustee
John S. Dyson, Trustee
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Richard M. Kessel President and Chief Executive Officer
Gil C. Quiniones Chief Operating Officer
Judith C. McCarthy Acting General Counsel
Francine Evans Executive Vice President, Chief Administrative Officer
and Chief of Staff
Edward Welz Executive Vice President and Chief Engineer – Power Supply
Bert Cunningham Senior Vice President – Corporate Communications
Thomas DeJesu Senior Vice President – Public and Governmental Affairs
James F. Pasquale Senior Vice President – Marketing and Economic Development
Donald A. Russak Senior Vice President – Corporate Planning and Finance
Paul Belnick Acting Senior Vice President – Energy Services and Technology
Dennis Eccleston Vice President – Information Technology/Chief Information Officer
Michael Huvane Vice President – Marketing
Arthur Cambouris Deputy General Counsel – Litigation
Karen Delince Corporate Secretary
Brian McElroy Treasurer
Michael Saltzman Director – Media Relations
Lorna M. Johnson Assistant Corporate Secretary
Sheila Baughman Senior Secretary – Corporate Secretary’s Office
John V. Connorton, Jr. Hawkins, Delafield & Wood LLP
Bruce D. Van Dusen Hawkins, Delafield & Wood LLP
Chairman Townsend presided over the meeting. Corporate Secretary Delince kept the Minutes.
The President and Chief Executive Officer submitted the following report:
SUMMARY
“On April 14, 2011 the Governor signed legislation authorizing an extension of the Power for Jobs (‘PFJ’) and the Energy Cost Savings Benefit (‘ECSB’) Programs through June 30, 2012. The Trustees are requested to approve the extension of PFJ program benefits to the customers listed in Exhibit ‘1-A’ and ECSB program benefits to the customers listed in Exhibit ‘1-C’ through June 30, 2012. It is also requested that the Trustees approve the extension of contracts for Economic Development Power, High Load Factor and Municipal Distribution Agency power allocations through June 30, 2012, to coincide with the term of extended ECSB benefits to such entities for the customers listed in Exhibit ‘1-B.’ Lastly, the Trustees are requested to extend the expiration dates of the ECSB rates contained in the applicable service tariffs (ST-1, ST-1S, ST-35, ST-50 and ST-50A) to June 30, 2012 as shown in Exhibit ‘1-D.’
BACKGROUND
Power for Jobs
“In July 1997, the New York State Legislature and the Governor approved a program to provide low-cost power to businesses and not-for-profit corporations that agreed to retain or create jobs in New York State. In return for commitments to create or retain jobs, successful applicants receive three-year contracts for PFJ electricity.
“The program, originally intended to last three years, has been extended many times by the Legislature. Chapter 59 of the Laws of 2004 extended the benefits for PFJ customers whose contracts expired before the end of the program in 2005. Such customers were given the option to receive benefits in the form of an ‘electricity savings reimbursement’ rebate or a power contract extension. The Authority was also authorized to voluntarily fund the rebates, if deemed feasible and advisable by the Trustees.
“In 2005, provisions of the approved State budget extended the period PFJ customers could receive benefits until December 31, 2006. Chapter 645 of the Laws of 2006 included provisions extending the program benefits until June 30, 2007. In 2007, a new law (Chapter 89 of the Laws of 2007) included provisions extending the program benefits until June 30, 2008.
“In 2008, a new law (Chapter 645 of the Laws of 2008) included provisions extending the program benefits until June 30, 2009. In 2009, Chapter 217 of the Laws of 2009 included provisions extending the program benefits until May 15, 2010; that was subsequently extended to June 2, 2010. In 2010, Chapter 311 of the laws of 2010 included provisions extending the program benefits until May 15, 2011.
Contract Extensions and ESCB Awards
“The Authority sells electricity to businesses under several State-authorized economic development power programs. These power sales are made through the Economic Development Power program, High Load Factor program, Municipal Distribution Agency program and other power sales programs. The capacity and energy for these sales are provided by market purchases and supported by other Authority sources, as needed. In some instances, these customers are served directly by the Authority and in other cases the customers receive Authority power through resale arrangements with municipal distribution agencies or investor-owned utilities. Contracts range in length from 5 to more than 20 years.
“Chapter 313 of the Laws of 2005 allowed customers from the above-listed economic development programs that would otherwise be exposed to market price increases to apply for benefits under the ECSB program. The legislation also authorized the Authority to sell certain amounts of unallocated hydropower into the wholesale market and use the net earnings from such sales to fund ECSB. During periods of lower market prices, the net earnings from the available hydropower have been sufficient to cover the cost of the ECSB program. In higher priced markets, however, the Authority has needed to contribute to the ECSB program. From the inception of the program in November 2005 through December 2010, the net earnings from the unallocated hydropower sold into the wholesale market virtually offset the customer losses.
“Concurrent with the PFJ program as described above, ECSB has been extended many times, including provisions in Chapter 311 of the laws of 2010 extending ECSB program benefits to May 15, 2011.
Discussion
Power for Jobs
“The recently passed legislation would allow PFJ recipients to continue with existing elections (i.e., power contracts or rebates) through June 30, 2012, with the program benefits administered as in current law. Manufacturers currently receiving benefits under the power contract option are allowed to switch to the rebate option for the extended term. In addition, the legislation extends the availability of ‘restitution’ for those PFJ power contract customers that incur aggregate higher costs in the program as opposed to taking service from their local utilities under standard tariff provisions.
“Under Economic Development Law, the Economic Development Power Allocation Board (‘EDPAB’) may prescribe a simplified form and content for an application for such extended PFJ benefits. An applicant is eligible for extended PFJ benefits only if it is in compliance with and agrees to continue to meet the job retention and creation commitments set forth in its prior PFJ contract, or such other commitments ‘as the board deems reasonable.’ However, in order to avoid disruption in the delivery of PFJ benefits, the legislation directs EDPAB to expedite the award of PFJ and to defer the review of compliance with job commitments until after applicants have been awarded PFJ benefits.
“In light of the requirement of the legislation that current recipients receive extended PFJ benefits with minimal disruption subject to later review of compliance matters, at its April 20, 2011 meeting, EDPAB has recommended that the Trustees approve extensions for all current PFJ program participants, subject to receipt of proper documentation requesting such extensions and agreement on the requisite commercial terms. Consistent with the legislative goal that current PFJ program participants receive extended benefits with minimal disruption, EDPAB recommended that review of compliance matters be deferred, however, not later than June 30, 2011.
“The Trustees are requested to approve contract extensions and the funding of rebates for the companies listed in Exhibit ‘1-A’ through June 30, 2012. The actual payment of rebates for the companies listed in Exhibit ‘1-A’ will continue to be made as in prior years subject to the financial considerations contained in the Fiscal Information section below and the certification by the Treasurer or the Deputy Treasurer that the funds are not needed for any of the purposes specified in the Authority’s General Resolution Authorizing Revenue Obligations, as amended and supplemented (the ‘Bond Resolution’). While the Trustees will not be asked to approve the payment amounts on a monthly basis, the information will be made available to them when requested. The total cost of the extended rebate program is estimated to be about $50 million for the thirteen-and-a-half month extension of the Program. From the inception of the rebate program in 2005 through the end of 2010, the Authority incurred $241 million in rebate payments to eligible customers, averaging slightly more than $40 million per year.
Contract Extensions and ECSB Awards
“There are seventy-four Economic Development Power, High Load Factor, and Municipal Distribution Agency allocations with underlying power contracts that have terms ending on May 15, 2011, or on other dates before June 30, 2012. In order for ECSB benefits to be extended for such allocations, it is necessary to extend their underlying power contracts. At its April 20, 2011 meeting, and pursuant to Economic Development Law, EDPAB has recommended extension of Economic Development Power and High Load Factor contracts, as necessary, so that such businesses will be able to receive ECSB benefits through the end of the legislation’s extension period on June 30, 2012. These customers are listed on Exhibit ‘1-B.’
“ECSB awards serve to moderate rates for businesses served under the High Load Factor, Economic Development Power and Municipal Distribution Agency programs. Under the new legislation, EDPAB is authorized to recommend extensions of ECSB awards through June 30, 2012. The legislation extends ECSB benefits to entities that are currently receiving such benefits and businesses under these programs whose rates would be subject to increase on or before June 30, 2012. For entities currently receiving ECSB awards, the legislation provides for continuation of the existing level of benefits for the period while allowing the Authority to continue to use up to 70 MW of unallocated Replacement Power and up to 38.6 MW of unallocated Preservation Power to fund the ECSB awards, provided that any such Replacement Power must be made available for allocation in Western New York and any such Preservation Power must be made available in Franklin, Jefferson and St. Lawrence counties during the extension period.
“As under current law, applications for extensions of ECSB awards are to be in the form and contain such information, exhibits and supporting data as EDPAB may prescribe. EDPAB is to review the applications received and determine the applications that best meet the criteria established for the ECSB awards and recommend such applications to the Authority with ‘such terms and conditions as it deems appropriate.’ In order to avoid disruption in the delivery of ECSB benefits, the legislation directs EDPAB to expedite the award of ECSB and to defer the review of compliance with job commitments until after applicants have been awarded ECSB.
“In light of the requirement of the legislation that current recipients receive extended ECSB benefits with minimal disruption subject to later review of compliance matters, at its April 20, 2011 meeting, EDPAB has recommended that the Trustees approve extensions for all current ECSB program participants, subject to receipt of proper documentation requesting such extensions and agreement on the requisite commercial terms. Consistent with the legislative goal that current ECSB program participants receive extended benefits with minimal disruption, EDPAB recommended that review of compliance matters be deferred, however, not later than June 30, 2011. Companies recommended by EDPAB for ECSB extensions through June 30, 2012 are listed in Exhibit ‘1-C.’
“It is recommended that subject to the financial considerations contained in the Fiscal Information section below, the Trustees approve ECSB awards to companies listed in Exhibit ‘1-C,’ through June 30, 2012, the cost of which, at current market prices, is expected to be fully offset by the net receipts from the sale of unallocated Replacement Power and Preservation Power as allowed by the legislation. However, as noted above, should market prices increase to levels higher than that of today, there may be a net cost to the Authority, which, based on historical results observed during the life of the program, would not be expected to exceed $20 million. Accordingly, in such an event, staff recommends that the Trustees authorize a withdrawal of up to $20 million from the Operating Fund for the payment of such amounts, provided that such amount is not needed at the time of withdrawal for any of the purposes specified in Section 503(1)(a)-(c) of the Authority’s Bond Resolution.
“As the extension of these Programs was anticipated in the Authority’s budget process, such costs have already been reflected in the Authority’s 2011 Budget and Four Year Financial Plan approved by the Trustees at their December 13, 2010 meeting. Given the financial condition of the Authority, its estimated revenues, operating expenses, debt service and reserve requirements, staff is of the view that it is feasible for the Authority to pay the anticipated costs associated with the extension of the PFJ and ECSB programs through June 30, 2012 without compromising its financial integrity.
INFORMATION ON RECHARGE NEW YORK POWER PROGRAM
“The new legislation signed by the Governor on April 14, 2011 amended the Economic Development Law to create a new Recharge New York power program (‘RNY’). The Governor’s program will commence power sales on July 1, 2012, after the expiration of both the PFJ and ECSB programs that will terminate on June 30, 2012. RNY is a 910 MW economic development power program, consisting of 455 MW of hydroelectric power and an equal amount of market supply. The 455 MW block of hydropower was previously sold to three upstate utilities, New York State Electric & Gas Corporation (‘NYSEG’), Niagara Mohawk Power Corporation d/b/a National Grid (‘National Grid’) and Rochester Gas & Electric Corporation (‘RG&E’), for the benefit of their rural and domestic consumers.
“As with current practices, EDPAB will review applications and recommend RNY allocations for approval by the Trustees. The criteria used to evaluate the applications include, but are not limited to: the amount of new capital investment, the significance of electricity cost to the business, the number of jobs created or retained, an applicant’s payroll and its facility’s significance to the local and regional economy, and the risk of the business closing or curtailing operations in New York State. RNY allocations shall not exceed a term of seven years and relinquished power can be reallocated to eligible applicants.
“Eligible applicants include businesses whose demand is greater than 400 kW, not-for-profit corporations and small businesses, those whose demand is less than 400 kW. Current PFJ and ECSB recipients are eligible to apply for RNY only if in substantial compliance with their existing contractual commitments. The new legislation also provides for compliant PFJ and ECSB customers that apply for, but are not awarded RNY allocations to receive ‘transitional electricity discounts,’ phasing them out of program benefits over four years. At least 350 MW is set aside for use at facilities located within NYSEG, National Grid and RG&E service territories. At least 200 MW is set aside for the purpose of attracting new business to the state, creating new business within the state and expansion of existing facilities resulting in new jobs and increased capital investment. Lastly, the total amount of RNY power allocated to small businesses and not-for-profit entities is not to exceed 100 MW.
FISCAL INFORMATION
“Based on today’s market prices, the ECSB program costs are expected to be fully offset by the net earnings from the unallocated hydropower sold into the wholesale market. The extension of the PFJ program is estimated to cost the Authority approximately $50 million for the thirteen-and-a-half month extension. These results have already been reflected in the Authority’s 2011 Budget and Four-Year Financial Plan approved by the Trustees at their December 13, 2010 meeting, and as such, no significant changes in the Authority’s financial projections are anticipated. Moreover, any release of funds for this purpose shall require a certification by the Treasurer or the Deputy Treasurer that the funds are not needed for any of the purposes specified in the Authority’s Bond Resolution.
Recommendation
“The Vice President – Marketing and the Executive Vice President and Chief Financial Officer recommend that the Trustees approve the extended Power for Jobs and Energy Cost Savings Benefits and the contract extensions as set forth above. Additionally, the Trustees are requested to amend the Energy Cost Savings Benefits service tariffs’ expiration date to June 30, 2012.
“For the reasons stated, I recommend the approval of the above-requested action by adoption of a resolution in the form of the attached draft resolution.”
Mr. James Pasquale presented highlights of staff’s recommendations to the Trustees. In response to a question from Vice Chairman Jonathan Foster, Mr. James Pasquale said that, due to the nature of their businesses, not-for-profit organizations such as the 92nd Street YM-YWHA, usually have very high jobs/MW ratios. However, the new Recharge New York Program, under which all current businesses have to reapply for a power allocation, staff will conduct a complete evaluation of all applications and the benefit an applicant receives will be determined by what the applicant proposes to bring to the state. In response to a question from Trustee Mark O’Luck, Mr. Pasquale said the legislation that was passed extended the current Power for Jobs (“PFJ”) and Energy Cost Savings Benefit (“ECSB”) programs and the compliance review to the Board in June will be for the final applications for those programs.
President Kessel stated that the Proceeds legislation, which was enacted last year, allows the Authority to give its unallocated MW to Western New York (“WNY”). There have been discussions with a delegation from WNY as to the interpretation of this new legislation since they are of the opinion that all of the ECSB allocation should go to WNY. The Authority is also discussing this issue with the Governor’s office and the delegation from WNY, since the interpretation will impact the ECSB program.
In response to a question from Vice Chairman Jonathan Foster, Mr. Pasquale said that the legislation as written allows the customers who are in the present program to get an extension pending compliance review and approval by the Board. In response to further question from Vice Chairman Foster, Mr. Pasquale said that the contracts expire on May 15, 2011, therefore the Trustees are being asked to authorize the extension of the contracts from May 15, 2011 until June 30, 2011. Trustee Dyson further stated that the compliance review will assist the Board in deciding the amount of allocation these companies should be entitled to under the new Recharge New York Program. Chairman Michael Townsend added that the Board is approving an extension of the existing program; however, when the new program takes effect, a new set of criteria, more in keeping with the Authority’s mission statement, will be used in allocating the power. In response, Mr. Pasquale said that Chairman Townsend’s statement was correct adding that the legislation also requires that allocation up to 100 MW of power be made available to not-for-profit and small businesses. In response to a question from Trustee Curley, Mr. Pasquale said that the customer information in the item today was provided by the customers when the Authority extended the programs last June. The new information, including information regarding Quebecor World Buffalo, Inc., which is closing its operations in Buffalo, will be reflected in the compliance review to the Board in June. In response to a question from Trustee O’Luck, Mr. Pasquale said that when staff does its compliance review, staff can recommend that the Authority take back the allocation to Quebecor since, in closing its operations, it will most likely not be in compliance. He also pointed out that under the current legislation, the Authority is not allowed to reallocate PFJ and ECSB power; however, under the new Recharge New York program, allocations of power can be reallocated, a benefit of the new program.
In response to further question from Trustee Curley, President Kessel said that he had a meeting with the Western New York delegation with regards to the Proceeds legislation and they have agreed that one of the Authority’s Trustees should be a member of the Advisory group and he will advise the Board concerning its development.
Chairman Townsend recused himself from voting on this item.
The following resolution, as submitted by the President and Chief Executive Officer, was adopted by a vote of 5-1 with Chairman Townsend recusing himself.
WHEREAS, the Economic Development Power Allocation Board (‘EDPAB’) has recommended that the Authority approve contract extensions and electricity savings reimbursements to the Power for Jobs (“PFJ”) customers listed in Exhibit “1-A”; and
WHEREAS, EDPAB has recommended that the Authority approve contract extensions to the Economic Development Power and High Load Factor Power program customers listed in Exhibit “1-B”; and
WHEREAS, EDPAB has recommended that the Authority approve the award of Energy Cost Savings Benefit Awards (“ECSB”) to the customers listed in Exhibit “1-C”;
NOW THEREFORE BE IT RESOLVED, That the Authority implements such EDPAB recommendations and the Authority hereby approves PFJ contract extensions through June 30, 2012 for those companies listed in Exhibit “1-A” and authorizes the continued payment of PFJ electricity savings reimbursements to the companies listed in Exhibit “1-A” as submitted to this meeting, subject to the terms set forth in the foregoing report of the President and Chief Executive Officer and that the Authority finds that such extensions are in all respects reasonable, consistent with the requirements of the PFJ program and in the public interest; and be it further
RESOLVED, That the Authority approves contract extensions for the Economic Development and High Load Factor customers set forth in Exhibit “1-B,” provided the Authority receives proper documentation requesting such extensions and agreement on the requisite commercial terms; and be it further
RESOLVED, That the customers’ service tariffs be modified accordingly to reflect the extension of the ECSB awards as shown in Exhibit “1-D”; and be it further
RESOLVED, That based on the recommendation of staff, it is hereby authorized that payments be made for electricity savings reimbursements as described in the foregoing report of the President and Chief Executive Officer in the aggregate amount of up to $50 million for all extensions of such electricity savings reimbursements after May 15, 2011 through June 30, 2012 and it is hereby found that amounts may properly be withdrawn from the Operating Fund to fund such payments; and be it further
RESOLVED, That to implement such EDPAB recommendation, the Trustees approve ECSB awards to the companies listed in Exhibit “1-C”, for the period through June 30, 2012, the cost of which may not exceed $20 million, net of receipts from the sale of unallocated Replacement Power, and be it further
RESOLVED, That such monies for the electricity savings reimbursements and for the ESCB awards may be withdrawn pursuant to the foregoing resolution upon the certification on the date of such withdrawal by the Treasurer or the Deputy Treasurer that the amount to be withdrawn is not then needed for any of the purposes specified in Section 503 (1)(a)-(c) of the General Resolution Authorizing Revenue Obligations, as amended and supplemented; and be it further
RESOLVED, That the Senior Vice President – Marketing and Economic Development or his designee be, and hereby is, authorized to negotiate and execute any and all documents necessary or desirable to effectuate the foregoing; and be it further
RESOLVED, That the Chairman, the Vice Chairman, the President and Chief Executive Officer, the Chief Operating Officer and all other officers of the Authority are, and each of them hereby is, authorized on behalf of the Authority to do any and all things, take any and all actions and execute and deliver any and all certificates, agreements and other documents to effectuate the foregoing resolutions, subject to the approval of the form thereof by the Acting General Counsel.
