§ 9-103 — Energy performance contracts

§ 9-103. Energy performance contracts. 1. Notwithstanding any other\nprovision of law, any agency, municipality, or public authority, in\naddition to existing powers, is authorized to enter into energy\nperformance contracts of up to thirty-five years duration, provided,\nthat the duration of any such contract shall not exceed the reasonably\nexpected useful life of the energy facilities or equipment subject to\nsuch contract.\n 2. Any energy performance contract entered into by any agency or\nmunicipality shall contain the following clause: "This contract shall be\ndeemed executory only to the extent of the monies appropriated and\navailable for the purpose of the contract, and no liability on account\ntherefor shall be incurred beyond the amount of such monies. It is\nunderstood that neither this contract nor any representation by any\npublic employee or officer creates any legal or moral obligation to\nrequest, appropriate or make available monies for the purpose of the\ncontract."\n 3. In the case of a school district or a board of cooperative\neducational services, an energy performance contract shall be an\nordinary contingent expense, and shall in no event be construed as or\ndeemed a lease or lease-purchase of a building or facility, for purposes\nof the education law.\n 4. Agencies, municipalities, and public authorities are encouraged to\nconsult with and seek advice and assistance from the New York state\nenergy research and development authority concerning energy performance\ncontracts.\n 5. Notwithstanding any other provision of law, in order to convey an\ninterest in real property necessary for the construction of facilities\nor the operation of equipment provided for in an energy performance\ncontract, any agency, municipality or public authority may enter into a\nlease of such real property to which it holds title or which is under\nits administrative jurisdiction as is necessary for such construction or\noperation, with an energy performance contractor, for the same length of\ntime as the term of such energy performance contract, and on such terms\nand conditions as may be agreeable to the parties thereto and are not\notherwise inconsistent with law, and notwithstanding that such real\nproperty may remain useful to such agency, municipality or public\nauthority for the purpose for which such real property was originally\nacquired or devoted or for which such real property is being used.\n 6. In lieu of any other competitive procurement or acquisition process\nthat may apply pursuant to any other provision of law, an agency,\nmunicipality, or public authority may procure an energy performance\ncontractor by issuing and advertising a written request for proposals in\naccordance with procurement or internal control policies, procedures, or\nguidelines that the agency, municipality, or public authority has\nadopted pursuant to applicable provisions of the state finance law, the\nexecutive law, the general municipal law, or the public authorities law,\nas the case may be.\n 7. Sections one hundred three and one hundred nine-b of the general\nmunicipal law shall not apply to an energy performance contract for\nwhich a written request for proposals is issued pursuant to subdivision\nsix of this section.\n 8. In the case of a school district or a board of cooperative\neducational services, an energy performance contract shall be developed\nand approved pursuant to the requirements of this section and pursuant\nto regulations promulgated by the commissioner of education in\nconsultation with the New York state energy research and development\nauthority. Such regulations shall include, but shall not be limited to:\na list of the appropriate type of projects that qualify as energy\nperformance contracts; an approval process that includes review of the\ntype and nature of the proposed project, the scope and nature of the\nwork to be performed, and a detailed breakdown of the energy savings to\nbe derived each year and for the duration of the energy performance\ncontract; and a process for ensuring that districts have obtained\nfinancing at the lowest cost possible. Such regulations shall require\nthat all energy performance contracts which contain maintenance and\nmonitoring charges as part of the energy performance contract price\nstate such maintenance and monitoring charges separately in the contract\nin a clear and conspicuous manner. Such regulations shall not apply to\nenergy performance contracts entered into prior to the effective date of\nsuch regulations, nor shall they apply to energy performance contracts\nfor which a request for proposals was issued prior to such effective\ndate.\n