S T A T E O F N E W Y O R K
________________________________________________________________________
6949--A
I N S E N A T E
April 7, 2014
___________
Introduced by Sen. MARCHIONE -- read twice and ordered printed, and when
printed to be committed to the Committee on Energy and Telecommuni-
cations -- committee discharged, bill amended, ordered reprinted as
amended and recommitted to said committee
AN ACT to amend the energy law, in relation to permitting agencies,
municipalities and public authorities to enter into power purchase
agreements
THE PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND ASSEM-
BLY, DO ENACT AS FOLLOWS:
Section 1. Section 9-102 of the energy law is amended by adding a new
subdivision 5 to read as follows:
5. "SOLAR POWER PURCHASE AGREEMENT" MEANS AN AGREEMENT FOR THE
PURCHASE OF ELECTRICITY, PRODUCED BY SOLAR POWERED ELECTRICITY GENERAT-
ING SYSTEMS, IN WHICH A PERSON AGREES TO INSTALL, MAINTAIN AND MANAGE
SOLAR POWERED ELECTRICITY GENERATING SYSTEMS OR EQUIPMENT ON REAL PROP-
ERTY OF AN AGENCY, MUNICIPALITY OR PUBLIC AUTHORITY, TO PRODUCE SUCH
ELECTRICITY WITH NO CAPITAL OUTLAY OR INVESTMENT BY THE AGENCY, MUNICI-
PALITY OR PUBLIC AUTHORITY, IN EXCHANGE FOR A LONG TERM AGREEMENT BY
SUCH AGENCY, MUNICIPALITY OR PUBLIC AUTHORITY TO PURCHASE THE ELECTRIC-
ITY PRODUCED BY SUCH SOLAR POWERED ELECTRICITY GENERATING SYSTEMS OR
EQUIPMENT AT A CURRENT COST PER KILOWATT HOUR LESS THAN THAT OFFERED BY
THE UTILITY COMPANY SERVICING SUCH AGENCY, MUNICIPALITY OR PUBLIC
AUTHORITY AND AT A TOTAL COST OVER THE LIFE OF THE AGREEMENT THAT IS
REASONABLY DETERMINED BY THE GOVERNING BOARD OF SUCH AGENCY, MUNICI-
PALITY OR PUBLIC AUTHORITY TO BE LESS THAN IT WOULD OTHERWISE PAY TO THE
UTILITY SERVICING ITS LOCATION.
S 2. Section 9-103 of the energy law, as added by chapter 733 of the
laws of 1985, subdivision 1 as amended and subdivision 5 as added by
chapter 638 of the laws of 1989, subdivision 3 as amended and subdivi-
sions 6 and 7 as added by chapter 368 of the laws of 1994, subdivision 4
as amended by chapter 83 of the laws of 1995 and subdivision 8 as added
by section 78 of part A of chapter 436 of the laws of 1997, is amended
to read as follows:
EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
[ ] is old law to be omitted.
LBD14485-02-4
S. 6949--A 2
S 9-103. Energy performance contracts AND SOLAR POWER PURCHASE AGREE-
MENTS. 1. Notwithstanding any other provision of law, any agency, muni-
cipality, or public authority, in addition to existing powers, is
authorized to enter into energy performance contracts of up to thirty-
five years duration OR SOLAR POWER PURCHASE AGREEMENTS OF UP TO TWENTY
YEARS DURATION, provided, that the duration of any such contract OR
AGREEMENT shall not exceed the reasonably expected useful life of the
energy facilities, SOLAR POWERED ELECTRICITY GENERATING SYSTEMS or
equipment subject to such contract; AND PROVIDED FURTHER THAT WITH
RESPECT TO SOLAR POWER PURCHASE AGREEMENTS, SUCH AGENCY, MUNICIPALITY OR
PUBLIC AUTHORITY IS AUTHORIZED TO RESELL ANY EXCESS ELECTRICITY GENER-
ATED BY SUCH SOLAR POWERED ELECTRICITY GENERATING SYSTEMS OR EQUIPMENT
THROUGH THE USE OF A NET METERING SYSTEM, ELECTRICITY CREDITS OR OTHER
MEANS APPROVED BY THE NEW YORK STATE ENERGY RESEARCH AND DEVELOPMENT
AUTHORITY, THE NEW YORK INDEPENDENT SYSTEM OPERATORS OR THE PUBLIC
SERVICE COMMISSION.
2. Any energy performance contract entered into by any agency or muni-
cipality shall contain the following clause: "This contract shall be
deemed executory only to the extent of the monies appropriated and
available for the purpose of the contract, and no liability on account
therefor shall be incurred beyond the amount of such monies. It is
understood that neither this contract nor any representation by any
public employee or officer creates any legal or moral obligation to
request, appropriate or make available monies for the purpose of the
contract."
3. In the case of a school district or a board of cooperative educa-
tional services, an energy performance contract OR SOLAR POWER PURCHASE
AGREEMENT shall be an ordinary contingent expense, and shall in no event
be construed as or deemed a lease or lease-purchase of a building or
facility, for purposes of the education law.
4. Agencies, municipalities, and public authorities are encouraged to
consult with and seek advice and assistance from the New York state
energy research and development authority concerning energy performance
contracts AND/OR SOLAR POWER PURCHASE AGREEMENTS.
5. Notwithstanding any other provision of law, in order to convey an
interest in real property necessary for the construction of facilities
or the operation of equipment provided for in an energy performance
contract OR SOLAR POWER PURCHASE AGREEMENT, any agency, municipality or
public authority may enter into a lease of such real property to which
it holds title or which is under its administrative jurisdiction as is
necessary for such construction or operation, with an energy performance
contractor, OR SOLAR POWER PURCHASE AGREEMENT for the same length of
time as the term of such energy performance contract OR SOLAR POWER
PURCHASE AGREEMENT, and on such terms and conditions as may be agreeable
to the parties thereto and are not otherwise inconsistent with law, and
notwithstanding that such real property may remain useful to such agen-
cy, municipality or public authority for the purpose for which such real
property was originally acquired or devoted or for which such real prop-
erty is being used.
6. In lieu of any other competitive procurement or acquisition process
that may apply pursuant to any other provision of law, an agency, muni-
cipality, or public authority may procure an energy performance OR SOLAR
POWER PURCHASE contractor by issuing and advertising a written request
for proposals in accordance with procurement or internal control poli-
cies, procedures, or guidelines that the agency, municipality, or public
authority has adopted pursuant to applicable provisions of the state
S. 6949--A 3
finance law, the executive law, the general municipal law, or the public
authorities law, as the case may be.
7. Sections one hundred three and one hundred nine-b of the general
municipal law shall not apply to an energy performance contract OR SOLAR
POWER PURCHASE AGREEMENT for which a written request for proposals is
issued pursuant to subdivision six of this section.
8. In the case of a school district or a board of cooperative educa-
tional services, an energy performance contract shall be developed and
approved pursuant to the requirements of this section and pursuant to
regulations promulgated by the commissioner of education in consultation
with the New York state energy research and development authority. Such
regulations shall include, but shall not be limited to: a list of the
appropriate type of projects that qualify as energy performance
contracts; an approval process that includes review of the type and
nature of the proposed project, the scope and nature of the work to be
performed, and a detailed breakdown of the energy savings to be derived
each year and for the duration of the energy performance contract; and a
process for ensuring that districts have obtained financing at the
lowest cost possible. Such regulations shall require that all energy
performance contracts which contain maintenance and monitoring charges
as part of the energy performance contract price state such maintenance
and monitoring charges separately in the contract in a clear and
conspicuous manner. Such regulations shall not apply to energy perform-
ance contracts entered into prior to the effective date of such regu-
lations, nor shall they apply to energy performance contracts for which
a request for proposals was issued prior to such effective date.
9. IN THE CASE OF A SCHOOL DISTRICT OR A BOARD OF COOPERATIVE EDUCA-
TIONAL SERVICES, A SOLAR POWER PURCHASE AGREEMENT SHALL BE DEVELOPED AND
APPROVED PURSUANT TO THE REQUIREMENTS OF THIS SECTION. THE COMMISSIONER
OF EDUCATION IN CONSULTATION WITH THE NEW YORK STATE ENERGY RESEARCH AND
DEVELOPMENT AUTHORITY SHALL PROMULGATE SUCH REGULATIONS AS DETERMINED TO
BE NECESSARY TO REGULATE THE CONSTRUCTION, INSTALLATION AND MAINTENANCE
OF SOLAR POWERED ELECTRICITY GENERATING SYSTEMS OR EQUIPMENT AND TO
REQUIRE THAT ALL SOLAR POWER PURCHASE AGREEMENTS WHICH CONTAIN MAINTE-
NANCE AND MONITORING CHARGES STATE SUCH MAINTENANCE AND MONITORING
CHARGES SEPARATELY IN THE AGREEMENT IN A CLEAR AND CONSPICUOUS MANNER.
SUCH REGULATIONS SHALL NOT APPLY TO SOLAR POWER PURCHASE AGREEMENTS
ENTERED INTO PRIOR TO THE EFFECTIVE DATE OF SUCH REGULATIONS, NOR SHALL
THEY APPLY TO SOLAR POWER PURCHASE AGREEMENTS FOR WHICH A REQUEST FOR
PROPOSALS WAS ISSUED PRIOR TO SUCH EFFECTIVE DATE.
S 3. This act shall take effect immediately.