2006 New York Code - Energy Performance Contracts

 
    §  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.