NOTICE OF PUBLIC HEARING
ON PROPOSED PROJECT
AND FINANCIAL ASSISTANCE
Notice is hereby given by Chautauqua County Capital Resource Corporation (the “Issuer”) that a public hearing pursuant to Section 147(f) of the Internal Revenue Code of 1986, as amended (the “Code”), and, as required by the Issuer’s certificate of incorporation, Section 859-a of the General Municipal Law of the State of New York will be held by the Issuer on the 17th day of June, 2019 at 8:00 a.m., local time, at the offices of the Issuer located at SUNY Fredonia Technology Incubator, in the Large Conference Room located at 214 Central Avenue in the City of Dunkirk, Chautauqua County, New York, in connection with the following matters:
NRG Energy, Inc., a Delaware corporation on behalf of Dunkirk Power LLC (the “Borrower”), has submitted an application (the “Application”) to the Issuer, a copy of which Application is on file at the office of the Issuer, which Application requested that the Issuer consider undertaking a project (the “Project”) for the benefit of the Borrower, said Project consisting of the following: (A) the refunding of all or a portion of the following bonds previously issued by the County of Chautauqua Industrial Development Agency (the “IDA”) its Exempt Facility Revenue Bonds (NRG Dunkirk Power), Series 2009 in the original aggregate principal amount of $58,500,000 (the “Series 2009 Bonds”) which Series 2009 Bonds provided financing for previously completed capital projects (A)(1) the acquisition of a leasehold interest in the improved real property located at 100 Point Drive North, City of Dunkirk, County of Chautauqua, New York and consisting of approximately 83.5 acres (the “Application Premises”), (2) the making of certain renovations to the existing Dunkirk Steam Station located on the Application Premises (the “Application Facility”) necessary or convenient to the installation of the Application Equipment (as hereinafter defined), and (3) the acquisition and installation of the following equipment, machinery, fixtures and furnishings therein and thereon (the “Application Equipment): solid waste disposal facility and pollution control equipment consisting of fabric filter (baghouse) system, solids handling equipment, a solid waste silo system and related improvements, structures and auxiliary equipment to remove nitrogen oxide, sulfur dioxide, mercury and particulate matter from the Application Facility’s flue gas, as well as other equipment and maintenance work necessary to comply with an environmental consent order covering the Application Facility (the Application Premises, the Application Facility, the Application Renovations and the Application Equipment being collectively referred to as the “2009 Project”).
The Issuer is considering whether (A) to undertake the Project, (B) to finance the Project by issuing, from time to time, the Obligations, (C) to use the proceeds of the Obligations to pay the cost of undertaking the Project, together with necessary incidental costs in connection therewith, and (D) to provide certain exemptions from taxation with respect to the Project, including (1) exemption from mortgage recording taxes with respect to any documents, if any, recorded by the Issuer with respect to the Project in the office of the County Clerk of Chautauqua County, New York or elsewhere, and (2) exemption from deed transfer taxes on any real estate transfers with respect to the Project, if any.
If issuance of the Obligations is approved, interest on the Obligations will not be excludable from gross income for federal income tax purposes unless (A) pursuant to Section 147(f) of the Code and the regulations of the United States Treasury Department thereunder (the “Treasury Regulations”), the issuance of the Obligations is approved by the County Executive of Chautauqua County, New York after the Issuer has held a public hearing on the nature and location of the Project Facility and the issuance of the Obligations; and (B) pursuant to Section 145(a) of the Code, all property which is to be provided by the net proceeds of the Obligations is to be owned by a Section 501(c)(3) organization or a governmental unit and at least ninety-five percent (95%) of the net proceeds of the Obligations are used with respect to (1) state or local governmental units and/or (2) the activities of Section 501(c)(3) organizations which do not constitute “unrelated trades or businesses” (as defined in Section 513(a) of the Code) with respect to such Section 501(c)(3) organizations.
If the Issuer determines to proceed with the Project and the issuance of the Obligations, (A) the proceeds of the Obligations will be loaned by the Issuer to the Borrower pursuant to a loan agreement (the “Agreement”) requiring that the Borrower or its designee make payments equal to debt service on the Obligations and make certain other payments to the Issuer and (B) the Obligations will be a special obligation of the Issuer payable solely out of certain of the proceeds of the Agreement and certain other assets of the Issuer pledged to the repayment of the Obligations. THE OBLIGATIONS SHALL NOT BE A DEBT OF THE STATE OF NEW YORK OR CHAUTAUQUA COUNTY, NEW YORK, AND NEITHER THE STATE OF NEW YORK NOR CHAUTAUQUA COUNTY, NEW YORK SHALL BE LIABLE THEREON.
The Issuer has determined that the Project constitutes a “Type II action”, as said quoted term is defined in the regulations issued pursuant to Article 8 of the Environmental Conservation Law (the “Regulations”), and accordingly that no environmental impact statement or any other determination or procedure is required under the Regulations regarding the potential environmental impact of the Project.
The Issuer will at said time and place hear all persons with views on the location and nature of the proposed Project, the financial assistance being contemplated by the Issuer in connection with the proposed Project or the proposed plan of financing the proposed Project by the issuance from time to time of the Obligations. A copy of the Application filed by the Borrower with the Issuer with respect to the Project, including an analysis of the costs and benefits of the Project, is available for public inspection during business hours at the offices of the Issuer. A transcript or summary report of the hearing will be made available to the members of the board of directors of the Issuer and to the County Executive of Chautauqua County, New York. Approval of the issuance of the Obligations by Chautauqua County, New York, acting through its elected County Executive, is necessary in order for the interest on the Obligations to qualify for exemption from federal income taxation.
Additional information can be obtained from, and written comments may be addressed to: Mark Geise, Chief Executive Officer, Chautauqua County Capital Resource Corporation, 201 West Third Street, Suite 115, Jamestown, New York 14701; Telephone: 716-661-8900.
Dated: June 3, 2019.
CHAUTAUQUA COUNTY CAPITAL RESOURCE CORPORATION
Chief Financial Officer