N.Y. General City Law § 25-s: Definitions

§ 25-s. Definitions. As used in this article the following terms shall

have the following meanings:

(a) "Eligible energy user". Any non-residential user of energy

services, except a government agency, public benefit corporation, or

instrumentality thereof, hotel, or retail vendor as defined in this

section that:

(1) takes occupancy of non-residential premises after May third,

nineteen hundred eighty-five, for which it has, after such date, entered

into a written agreement to buy or lease, provided that such premises

are located in an eligible area and that such premises are a replacement

for premises previously occupied by such energy user for a continuous

period of twenty-four months during the thirty month period immediately

preceding such user's taking occupancy, which previously occupied

premises were: (A) outside an eligible area, or (B) within a commercial

development pressure area, provided that such replacement premises are

not located in a commercial development pressure area; or

(2) occupies, operates or manages specially eligible premises as

defined in this section.

Eligible energy users shall not include an occupant of premises

contained within a commercial development pressure area that have been

used principally for manufacturing activities at any time during the

twelve-month period prior to such occupant's taking occupancy unless

such occupant uses such premises principally for manufacturing

activities or such user takes occupancy of such premises after June

thirtieth, two thousand. In addition, an occupant of premises described

in paragraph one or two of this subdivision shall not be an eligible

energy user unless: (i) the energy services used and electricity and

natural gas consumed by such occupant at such premises are individually

and accurately metered and billed so as to enable a determination of the

occupant's usage of energy services, natural gas and electricity; and

(ii) for any occupant purchasing energy services, natural gas or

electricity from a vendor of energy services, (A) the price charged by

such vendor for such energy services, electricity and natural gas shall

be no higher than the price that would have been charged such occupant

directly by a utility pursuant to the applicable tariffs of the New York

state public service commission or the federal energy regulatory

commission, provided that an additional fee, not exceeding twelve

percent of such price, may be charged by such vendor, and (B) the price,

charges, fees (if any) and other terms and conditions for the sale of

such energy services, electricity and natural gas to such occupant are

clearly and separately set forth in a written contract or lease

agreement between such occupant and such vendor, and such vendor shall

separately state in each bill for such services, electricity and natural

gas the price, charges and fees (if any) that are included in such bill

and the amount of the special rebate made to such occupant or that no

special rebate has been made.

(b) "Specially eligible premises". (1) non-residential premises that

are wholly contained in property that is eligible to obtain benefits

under title two-D or two-F of article four of the real property tax law,

or would be eligible to receive benefits under such article except that

such property is exempt from real property taxation and the requirements

of paragraph (b) of subdivision seven of section four hundred

eighty-nine-dddd of such title two-D, or the requirements of

subparagraph (ii) of paragraph (b) of subdivision five of section four

hundred eighty-nine-cccccc of such title two-F, whichever is applicable,

have not been satisfied, provided that application for such benefits was

made after May third, nineteen hundred eighty-five and prior to July

first, two thousand twenty-seven, that construction or renovation of

such premises was described in such application, that such premises have

been substantially improved by such construction or renovation so

described, that the minimum required expenditure as defined in such

title two-D or two-F, whichever is applicable, has been made, and that

such real property is located in an eligible area; or

(2) non-residential premises that are wholly contained in real

property that has obtained approval after May third, nineteen hundred

eighty-five and prior to November first, two thousand for financing by

an industrial development agency established pursuant to article

eighteen-A of the general municipal law, provided that such financing

has been used in whole or in part to substantially improve such premises

(by construction or renovation), and that expenditures have been made

for improvements to such real property in excess of twenty per centum of

the value at which such real property was assessed for tax purposes for

the tax year in which such improvements commenced, and that such real

property is located in an eligible area; or

(3) non-residential premises that are wholly contained in real

property that has obtained approval after October thirty-first, two

thousand and prior to July first, two thousand twenty-seven for

financing by an industrial development agency established pursuant to

article eighteen-A of the general municipal law, provided that such

financing has been used in whole or in part to substantially improve

such premises (by construction or renovation), and that expenditures

have been made for improvements to such real property in excess of ten

per centum of the value at which such real property was assessed for tax

purposes for the tax year in which such improvements commenced, that

such expenditures have been made within thirty-six months after the

earlier of (i) the issuance by such agency of bonds for such financing,

or (ii) the conveyance of title to such property to such agency, and

that such real property is located in an eligible area; or

(4) non-residential premises that are wholly contained in real

property owned by such city or the New York state urban development

corporation, or a subsidiary thereof, a lease for which was approved in

accordance with the applicable provisions of the charter of such city,

and such approval was obtained after May third, nineteen hundred

eighty-five and prior to November first, two thousand, provided,

however, that such premises were constructed or renovated subsequent to

such approval, that expenditures have been made subsequent to such

approval for improvements to such real property (by construction or

renovation) in excess of twenty per centum of the value at which such

real property was assessed for tax purposes for the tax year in which

such improvements commenced, and that such real property is located in

an eligible area; or

(5) non-residential premises that are wholly contained in real

property owned by such city or the New York state urban development

corporation, or a subsidiary thereof, a lease for which was approved in

accordance with the applicable provisions of the charter of such city or

by the board of directors of such corporation, and such approval was

obtained after October thirty-first, two thousand and prior to July

first, two thousand twenty-seven, provided, however, that such premises

were constructed or renovated subsequent to such approval, that

expenditures have been made subsequent to such approval for improvements

to such real property (by construction or renovation) in excess of ten

per centum of the value at which such real property was assessed for tax

purposes for the tax year in which such improvements commenced, that

such expenditures have been made within thirty-six months after the

effective date of such lease, and that such real property is located in

an eligible area; or

(6) nonresidential premises contained in real property not located in

an eligible area that otherwise meet the criteria of paragraph one, two,

three, four or five of this subdivision, where such premises shall be

used primarily for manufacturing activities and provided that such

premises shall be improved as a result of expenditures in an amount in

excess of ten per centum of the assessed value of such real property

attributable to such premises at which such real property was assessed

for tax purposes for the tax year in which such improvements commenced,

except that the required expenditures for improvements to property

eligible to obtain benefits under title two-F of article four of the

real property tax law shall be the amount that an applicant must expend

on construction work for a project in order to qualify for benefits as

provided in such title. Attribution of value shall be made in accordance

with the rules and regulations of the city agency designated in the

local law enacted pursuant to section twenty-five-t of this article.

Only expenditures for improvements that have been identified as part of

the construction or reconstruction project meeting the requirements of

paragraph one, two, three, four or five of this subdivision, whichever

is applicable, shall qualify for purposes of satisfying the minimum

expenditure requirements of this subdivision. Notwithstanding the

foregoing, for purposes of applying the criteria of this subdivision,

the reference to May third, nineteen hundred eighty-five contained in

paragraphs one, two and four of this subdivision shall be deemed a

reference to May first, nineteen hundred eighty-six.

Provided, however, that no such premises described in paragraph one,

two, three, four, five or six of this subdivision, contained in a newly

constructed structure or building, shall come within this definition

unless such premises meet the requirements of the New York state energy

conservation construction code promulgated pursuant to article eleven of

the energy law or, if applicable, a municipal code authorized pursuant

to such article.

(c) "Retail vendor". Any person, including any corporation or other

business entity which is predominantly engaged in the sale, other than

through the mail, of tangible personal property to any person, for any

purpose unrelated to the trade or business of such person, or which is

predominantly engaged in selling services to individuals which services

generally involve the physical, mental and/or spiritual care of such

individuals, or the physical care of the personal property of such

person unrelated to the trade or business of such person, provided

however, where such sale of tangible personal property or services is

performed only by one or more operating units, divisions or subdivisions

of any person, only such operating units, divisions or subdivisions

shall come within the definition contained herein.

(d) "Discount". The amount of a reduction in a bill for energy

services rendered to a vendor of energy services or a public utility

service by a utility in accordance with the requirements of section

twenty-five-t of this article, equal to the special rebates made by such

vendor or public utility service to eligible energy users.

(e) "Hotel". A building or portion of it which is regularly used and

kept open as such for the lodging of guests. The term "hotel" includes

an apartment hotel, a motel, boarding house or club, whether or not

meals are served.

(f) "Commercial development pressure areas". Such portions of the

following areas as may be designated by local law enacted pursuant to

section twenty-five-t of this article experiencing or likely to

experience shortages of space suitable for manufacturing activities but

needing the benefits available under this article as an inducement to

economic development:

In the city of New York, (1) the area delineated by a line beginning

at the point of intersection of the Manhattan, Queens and Brooklyn

borough lines and running easterly along the Queens borough line to the

center line of Greenpoint Avenue; thence easterly along the center line

of Greenpoint Avenue to the center line of Review Avenue; thence

northerly along the center line of Review Avenue to the center line of

Borden Avenue; thence easterly along the center line of Borden Avenue to

the center line of Van Dam Street; thence northerly along the center

line of Van Dam Street to the center line of Skillman Avenue; thence

easterly along the center line of Skillman Avenue to the center line of

Honeywell Street; thence northerly along the center line of Honeywell

Street to the center line of Northern Boulevard; thence southwesterly

along the center line of Northern Boulevard to the center line of

Fortieth Road; thence westerly along the center line of Fortieth Road to

the center line of Twenty-ninth Street; thence southerly along the

center line of Twenty-ninth Street to the center line of Forty-first

Avenue; thence westerly along the center line of Forty-first Avenue to

the Queens borough line; thence southerly along the Queens borough line

to the point of beginning; and

(2) the area delineated by a line beginning at the point of

intersection of the Brooklyn borough line and the center line of Fulton

Street and running southerly along the center line of Fulton Street to

the center line of Prospect Street; thence easterly along the center

line of Prospect Street to the center line of Adams Street; thence

southerly along the center line of Adams Street to the center line of

Tillary Street; thence easterly along the center line of Tillary Street

to the center line of Duffield Street; thence northerly along the center

line of Duffield Street to the Brooklyn borough line; thence westerly

along the Brooklyn borough line to the point of beginning.

(g) "Eligible areas". Areas of a city designated by local law enacted

pursuant to section twenty-five-t of this article as needing the

benefits available under this article as an inducement to economic

development, provided that the area lying south of the center line of

96th Street, in the borough of Manhattan in the city of New York, shall

not be so designated.

(h) "Manufacturing activity". An activity involving the assembly of

goods to create a different article or the processing, fabrication or

packaging of goods.

(i) "Special rebate". The amount of a reduction in a bill rendered by

a utility, a public utility service or a vendor of energy services for

energy services to an eligible energy user or a qualified eligible

energy user, or an agent of either, or an on-site cogenerator or a clean

on-site cogenerator, and calculated in accordance with the applicable

provisions of section twenty-five-t of this article and the rules of the

city agency designated by the local law enacted pursuant to such

section.

(j) "Eligible charges", "eligible public utility service charges" and

"eligible on-site cogenerator charges". (1)(i) Eligible charges are

charges for energy services purchased from a utility or from a vendor of

energy services at a rate or rates established pursuant to an order or

rule of the New York state public service commission or the federal

energy regulatory commission, other than charges for the purchase of the

commodity of natural gas or electricity, and shall include applicable

rate reductions for economic development or similar purposes, and all

taxes payable thereon and shall exclude charges in accordance with

paragraph two of this subdivision.

(ii) Eligible public utility service charges are actual charges for

energy services made by a public utility service, and shall include all

taxes payable thereon, and shall exclude charges in accordance with

paragraph two of this subdivision, provided, however, that the

commissioner of the agency designated by local law enacted pursuant to

section twenty-five-t of this article may by rule adjust eligible public

utility service charges for purposes of adjusting the special rebate

based thereon to an amount that would be comparable to the special

rebate available to a comparable customer of a utility as determined by

such commissioner.

(iii) Except as otherwise provided in paragraph five of subdivision

(a) of section twenty-five-t of this article with respect to on-site

cogenerators certified before July first, two thousand three, and clean

on-site cogenerators certified after June thirtieth, two thousand three,

eligible on-site cogenerator charges are charges for energy services

purchased from a utility related to the delivery of natural gas to an

on-site cogenerator at rates established pursuant to an order or rule of

the New York state public service commission or the federal energy

regulatory commission, and shall include applicable rate reductions for

economic development or similar purposes, and all taxes payable thereon

and shall exclude charges in accordance with paragraph two of this

subdivision.

(2) (i) Eligible charges, eligible public utility service charges,

and, except as otherwise provided in paragraph five of subdivision (a)

of section twenty-five-t of this article with respect to eligible

on-site cogenerators certified before July first, two thousand three,

and clean on-site cogenerators certified after June thirtieth, two

thousand three, eligible on-site cogenerator charges shall not include

the following charges: (A) any special charges on bills relating to

energy services, including, but not limited to, collection charges, late

payment charges or excess distribution charges, or any additional fee

charged by a vendor of energy services to an eligible energy user,

qualified eligible energy user or on-site cogenerator for energy

services, as authorized by subdivision (a) of this section; (B) charges

for such energy services that are resold; and (C) charges for energy

services used for heating the premises.

(ii) Eligible charges and eligible public utility service charges

shall not include charges for energy services used in the production of

electricity.

(iii) Eligible on-site cogenerator charges shall not include charges

made by a utility for energy services relating to the sale or delivery

of natural gas used by an on-site cogenerator to generate electricity

used by any user not located on the same site as the on-site cogenerator

or by any user for purposes of heating any premises.

(iv) Charges related to energy used for space heating, when not

precisely ascertainable, shall be determined, for the purposes of this

paragraph, in accordance with methods or formulas reasonably designed to

approximate them that are devised by those designated by local law

enacted pursuant to section twenty-five-t of this article.

(k) "Vendor of energy services". Any person, corporation or other

entity not subject to the jurisdiction and general supervision of the

New York state public service commission that furnishes or sells energy

services to an eligible energy user, a qualified eligible energy user or

an on-site cogenerator as an incident to leasing, subleasing, licensing

or otherwise permitting such user to rent or occupy premises of such

vendor.

(l) "Empowerment zone". Empowerment zone shall mean an area within a

city having a population of one million or more that has been designated

as an empowerment zone pursuant to the Omnibus Budget Reconciliation Act

of 1993.

(m) "Public utility service". A service established by a city having a

population of one million or more by local law pursuant to article

fourteen-A of the general municipal law, including the New York city

public utility service.

(n) "Empire zone". Empire zone shall mean an area within a city having

a population of one million or more that has been designated as an

empire zone pursuant to article eighteen-B of the general municipal law.

(o) "Utility". A person that provides energy services within a city

having a population of one million or more and is subject to the

jurisdiction and general supervision of the New York state public

service commission and to a tax imposed by such city pursuant to

subdivision (a) of section twelve hundred one of the tax law, except

that the Long Island Power Authority, or its subsidiary, is a utility

under this subdivision to the extent that it provides energy services

within a city having a population of one million or more and makes a

payment to such city that is equivalent to the tax imposed on utilities

pursuant to such subdivision (a) of section twelve hundred one of the

tax law.

(p) "Energy conservation measures". The construction, alteration,

repair or improvement to a building or separate leased space within a

building or to equipment affixed to, contained in, or on the grounds of

a building, which reduces energy consumption.

(q) "Simple payback period". The number of years necessary to recoup

the cost of an energy conservation measure through annual energy cost

savings.

(r) "Qualified eligible energy user". (1) A user of energy services

that would have qualified as an eligible energy user under paragraph one

of subdivision (a) of this section if the reference to May third,

nineteen hundred eighty-five were deemed a reference to December

thirty-first, nineteen hundred ninety, and that (i) agrees to expand the

number of its full-time employees, within two years from the date of

certification, by fifty employees or ten percent of the number of its

full-time employees as of January first, nineteen hundred ninety-one,

whichever is greater; provided, however, that one economically

disadvantaged or unemployed person hired as a full-time employee after

the date of certification shall be counted as two full-time employees

and two part-time employees shall be counted as one full-time employee;

and provided, further, that the agency designated by local law enacted

pursuant to section twenty-five-t of this article may define by rule

full-time employees, part-time employees, unemployed persons,

economically disadvantaged persons, and criteria for continued

eligibility in relation to fluctuations in employment levels; or (ii)

develops, implements, and maintains, in consultation with the New York

city department of employment, a job training program which shall be

certified and monitored by such department and which shall meet the

standards for such programs as are established by the rules of the

agency designated by local law enacted pursuant to section twenty-five-t

of this article; or

(2) Any non-residential user of energy services, except a government

agency, public benefit corporation, or instrumentality thereof, hotel,

or retail vendor as defined in this section, that occupies, operates or

manages targeted eligible premises.

An occupant of targeted eligible premises described in paragraph one

or two of this subdivision shall not be a qualified eligible energy user

unless the energy services used by such occupant at such premises are

individually and accurately metered and billed so as to enable a

determination of the occupant's usage of such energy services to be

made.

(s) "Targeted eligible premises". (1) non-residential premises that

are wholly contained in property that is eligible to obtain benefits

under title two-D of article four of the real property tax law, or would

be eligible to receive benefits under such article except that such

property is exempt from real property taxation and the requirements of

paragraph (b) of subdivision seven of section four hundred

eighty-nine-dddd of such law have not been satisfied, provided that

application for such benefits was made after December thirty-first,

nineteen hundred ninety and prior to November first, two thousand, that

construction or renovation of such premises was described in such

application, that such premises have been substantially improved by such

construction or renovation so described, that twice the minimum required

expenditure as defined in such title has been made, and that such real

property is located in an eligible area; or

(2) non-residential premises that are wholly contained in real

property that has obtained approval after December thirty-first,

nineteen hundred ninety and prior to November first, two thousand for

financing by an industrial development agency established pursuant to

article eighteen-A of the general municipal law, provided that such

financing has been used in whole or in part to substantially improve

such premises by construction or renovation, and that expenditures have

been made for improvements to such real property in excess of forty per

centum of the value at which such real property was assessed for tax

purposes for the tax year in which such improvements commenced, and that

such real property is located in an eligible area; or

(3) non-residential premises that are wholly contained in real

property owned by the city of New York or the New York state urban

development corporation, or a subsidiary thereof, a lease for which was

approved in accordance with the applicable provisions of the charter of

such city, and such approval was obtained after December thirty-first,

nineteen hundred ninety and prior to November first, two thousand,

provided that such premises were constructed or renovated subsequent to

such approval, that expenditures have been made subsequent to such

approval for improvements to such real property by construction or

renovation in excess of forty per centum of the value at which such real

property was assessed for tax purposes for the tax year in which such

improvements commenced, and that such real property is located in an

eligible area; or

(4) non-residential premises contained in real property not located in

an eligible area that otherwise meet the criteria of paragraph one, two

or three of this subdivision, where such premises shall be used

primarily for manufacturing activities and provided that such premises

shall be improved as a result of expenditures in an amount in excess of

twenty per centum of the assessed value of such real property

attributable to such premises at which such real property was assessed

for tax purposes for the tax year in which such improvements commenced.

Attribution of value shall be made in accordance with the rules of the

city agency designated in the local law enacted pursuant to section

twenty-five-t of this article. Only expenditures for improvements that

have been identified as part of the construction or renovation project

meeting the requirements of paragraph one, two or three of this

subdivision, whichever is applicable, shall qualify for purposes of

satisfying the minimum expenditure requirements of this subdivision.

Provided, however, that no such premises described in paragraph one,

two, three or four of this subdivision, contained in a newly constructed

structure or building, shall come within this definition unless such

premises meet the requirements of the New York state energy conservation

construction code promulgated pursuant to article eleven of the energy

law or, if applicable, a municipal code authorized pursuant to such

article. And provided, further, that (i) the qualified eligible energy

user shall submit on an annual basis proof that the heating and cooling

systems within the premises continue to meet the performance standards

specified in section 7813.21 of the energy conservation construction

code, or such predecessor section to which the premises, when

constructed or substantially renovated, were subject and (ii) to the

extent that the cost of motors or lighting equipment described in

sections 7813.52 and 7813.53 of the energy conservation construction

code is included as part of the minimum expenditures required in

paragraph one, two, three or four of this subdivision, the qualified

eligible energy user shall certify that all such compatible equipment

with a simple payback period of five years or less has been installed.

(t) "Energy services". The transmission and distribution of

electricity or gas, and such other services that are associated with

such transmission and distribution as shall be designated as energy

services by rule of the commissioner of the agency designated by local

law enacted pursuant to section twenty-five-t of this article as such

commissioner deems necessary to promote economic development, provided

that energy services shall not include the commodity of gas or

electricity.

(u) "On-site cogenerator". A person, other than a utility, that owns

an electric generating facility that simultaneously or sequentially

produces electricity and useful thermal energy, provided that

substantially all of such electricity shall be used by an eligible

energy user that occupies the same site as such generating facility. An

on-site cogenerator may be the same or a separate person as such

eligible energy user.

(v) "Clean on-site cogenerator". An on-site cogenerator, the

electricity generating facility of which has an emission rate for

nitrous oxides of no more than three tenths of one pound per megawatt

hour. The commissioner of the agency designated by local law enacted

pursuant to section twenty-five-t of this article shall establish by

rule a megawatt hour equivalent for any useful thermal energy produced

by the cogenerator for purposes of determining benefits under this

article.