N.Y. Energy Law § 9-103: 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.