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This entry was published on 2014-09-22
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SECTION 9-103
Energy performance contracts
Energy (ENG) CHAPTER 17-A, ARTICLE 9
§ 9-103. Energy performance contracts. 1. Notwithstanding any other
provision of law, any agency, municipality, or public authority, in
addition to existing powers, is authorized to enter into energy
performance contracts of up to thirty-five years duration, provided,
that the duration of any such contract shall not exceed the reasonably
expected useful life of the energy facilities or equipment subject to
such contract.

2. Any energy performance contract entered into by any agency or
municipality 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
educational services, an energy performance contract 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.

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, 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, for the same length of
time as the term of such energy performance contract, 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 agency, municipality or public
authority for the purpose for which such real property was originally
acquired or devoted or for which such real property 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,
municipality, or public authority may procure an energy performance
contractor by issuing and advertising a written request for proposals in
accordance with procurement or internal control policies, procedures, or
guidelines that the agency, municipality, or public authority has
adopted pursuant to applicable provisions of the state 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 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
educational 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 performance contracts entered into prior to the effective date of
such regulations, nor shall they apply to energy performance contracts
for which a request for proposals was issued prior to such effective
date.