§ 25-S — Definitions

§ 25-s. Definitions. As used in this article the following terms shall\nhave the following meanings:\n (a) "Eligible energy user". Any non-residential user of energy\nservices, except a government agency, public benefit corporation, or\ninstrumentality thereof, hotel, or retail vendor as defined in this\nsection that:\n (1) takes occupancy of non-residential premises after May third,\nnineteen hundred eighty-five, for which it has, after such date, entered\ninto a written agreement to buy or lease, provided that such premises\nare located in an eligible area and that such premises are a replacement\nfor premises previously occupied by such energy user for a continuous\nperiod of twenty-four months during the thirty month period immediately\npreceding such user's taking occupancy, which previously occupied\npremises were: (A) outside an eligible area, or (B) within a commercial\ndevelopment pressure area, provided that such replacement premises are\nnot located in a commercial development pressure area; or\n (2) occupies, operates or manages specially eligible premises as\ndefined in this section.\n Eligible energy users shall not include an occupant of premises\ncontained within a commercial development pressure area that have been\nused principally for manufacturing activities at any time during the\ntwelve-month period prior to such occupant's taking occupancy unless\nsuch occupant uses such premises principally for manufacturing\nactivities or such user takes occupancy of such premises after June\nthirtieth, two thousand. In addition, an occupant of premises described\nin paragraph one or two of this subdivision shall not be an eligible\nenergy user unless: (i) the energy services used and electricity and\nnatural gas consumed by such occupant at such premises are individually\nand accurately metered and billed so as to enable a determination of the\noccupant's usage of energy services, natural gas and electricity; and\n(ii) for any occupant purchasing energy services, natural gas or\nelectricity from a vendor of energy services, (A) the price charged by\nsuch vendor for such energy services, electricity and natural gas shall\nbe no higher than the price that would have been charged such occupant\ndirectly by a utility pursuant to the applicable tariffs of the New York\nstate public service commission or the federal energy regulatory\ncommission, provided that an additional fee, not exceeding twelve\npercent of such price, may be charged by such vendor, and (B) the price,\ncharges, fees (if any) and other terms and conditions for the sale of\nsuch energy services, electricity and natural gas to such occupant are\nclearly and separately set forth in a written contract or lease\nagreement between such occupant and such vendor, and such vendor shall\nseparately state in each bill for such services, electricity and natural\ngas the price, charges and fees (if any) that are included in such bill\nand the amount of the special rebate made to such occupant or that no\nspecial rebate has been made.\n (b) "Specially eligible premises". (1) non-residential premises that\nare wholly contained in property that is eligible to obtain benefits\nunder title two-D or two-F of article four of the real property tax law,\nor would be eligible to receive benefits under such article except that\nsuch property is exempt from real property taxation and the requirements\nof paragraph (b) of subdivision seven of section four hundred\neighty-nine-dddd of such title two-D, or the requirements of\nsubparagraph (ii) of paragraph (b) of subdivision five of section four\nhundred eighty-nine-cccccc of such title two-F, whichever is applicable,\nhave not been satisfied, provided that application for such benefits was\nmade after May third, nineteen hundred eighty-five and prior to July\nfirst, two thousand twenty-seven, that construction or renovation of\nsuch premises was described in such application, that such premises have\nbeen substantially improved by such construction or renovation so\ndescribed, that the minimum required expenditure as defined in such\ntitle two-D or two-F, whichever is applicable, has been made, and that\nsuch real property is located in an eligible area; or\n (2) non-residential premises that are wholly contained in real\nproperty that has obtained approval after May third, nineteen hundred\neighty-five and prior to November first, two thousand for financing by\nan industrial development agency established pursuant to article\neighteen-A of the general municipal law, provided that such financing\nhas been used in whole or in part to substantially improve such premises\n(by construction or renovation), and that expenditures have been made\nfor improvements to such real property in excess of twenty per centum of\nthe value at which such real property was assessed for tax purposes for\nthe tax year in which such improvements commenced, and that such real\nproperty is located in an eligible area; or\n (3) non-residential premises that are wholly contained in real\nproperty that has obtained approval after October thirty-first, two\nthousand and prior to July first, two thousand twenty-seven for\nfinancing by an industrial development agency established pursuant to\narticle eighteen-A of the general municipal law, provided that such\nfinancing has been used in whole or in part to substantially improve\nsuch premises (by construction or renovation), and that expenditures\nhave been made for improvements to such real property in excess of ten\nper centum of the value at which such real property was assessed for tax\npurposes for the tax year in which such improvements commenced, that\nsuch expenditures have been made within thirty-six months after the\nearlier of (i) the issuance by such agency of bonds for such financing,\nor (ii) the conveyance of title to such property to such agency, and\nthat such real property is located in an eligible area; or\n (4) non-residential premises that are wholly contained in real\nproperty owned by such city or the New York state urban development\ncorporation, or a subsidiary thereof, a lease for which was approved in\naccordance with the applicable provisions of the charter of such city,\nand such approval was obtained after May third, nineteen hundred\neighty-five and prior to November first, two thousand, provided,\nhowever, that such premises were constructed or renovated subsequent to\nsuch approval, that expenditures have been made subsequent to such\napproval for improvements to such real property (by construction or\nrenovation) in excess of twenty per centum of the value at which such\nreal property was assessed for tax purposes for the tax year in which\nsuch improvements commenced, and that such real property is located in\nan eligible area; or\n (5) non-residential premises that are wholly contained in real\nproperty owned by such city or the New York state urban development\ncorporation, or a subsidiary thereof, a lease for which was approved in\naccordance with the applicable provisions of the charter of such city or\nby the board of directors of such corporation, and such approval was\nobtained after October thirty-first, two thousand and prior to July\nfirst, two thousand twenty-seven, provided, however, that such premises\nwere constructed or renovated subsequent to such approval, that\nexpenditures have been made subsequent to such approval for improvements\nto such real property (by construction or renovation) in excess of ten\nper centum of the value at which such real property was assessed for tax\npurposes for the tax year in which such improvements commenced, that\nsuch expenditures have been made within thirty-six months after the\neffective date of such lease, and that such real property is located in\nan eligible area; or\n (6) nonresidential premises contained in real property not located in\nan eligible area that otherwise meet the criteria of paragraph one, two,\nthree, four or five of this subdivision, where such premises shall be\nused primarily for manufacturing activities and provided that such\npremises shall be improved as a result of expenditures in an amount in\nexcess of ten per centum of the assessed value of such real property\nattributable to such premises at which such real property was assessed\nfor tax purposes for the tax year in which such improvements commenced,\nexcept that the required expenditures for improvements to property\neligible to obtain benefits under title two-F of article four of the\nreal property tax law shall be the amount that an applicant must expend\non construction work for a project in order to qualify for benefits as\nprovided in such title. Attribution of value shall be made in accordance\nwith the rules and regulations of the city agency designated in the\nlocal law enacted pursuant to section twenty-five-t of this article.\nOnly expenditures for improvements that have been identified as part of\nthe construction or reconstruction project meeting the requirements of\nparagraph one, two, three, four or five of this subdivision, whichever\nis applicable, shall qualify for purposes of satisfying the minimum\nexpenditure requirements of this subdivision. Notwithstanding the\nforegoing, for purposes of applying the criteria of this subdivision,\nthe reference to May third, nineteen hundred eighty-five contained in\nparagraphs one, two and four of this subdivision shall be deemed a\nreference to May first, nineteen hundred eighty-six.\n Provided, however, that no such premises described in paragraph one,\ntwo, three, four, five or six of this subdivision, contained in a newly\nconstructed structure or building, shall come within this definition\nunless such premises meet the requirements of the New York state energy\nconservation construction code promulgated pursuant to article eleven of\nthe energy law or, if applicable, a municipal code authorized pursuant\nto such article.\n (c) "Retail vendor". Any person, including any corporation or other\nbusiness entity which is predominantly engaged in the sale, other than\nthrough the mail, of tangible personal property to any person, for any\npurpose unrelated to the trade or business of such person, or which is\npredominantly engaged in selling services to individuals which services\ngenerally involve the physical, mental and/or spiritual care of such\nindividuals, or the physical care of the personal property of such\nperson unrelated to the trade or business of such person, provided\nhowever, where such sale of tangible personal property or services is\nperformed only by one or more operating units, divisions or subdivisions\nof any person, only such operating units, divisions or subdivisions\nshall come within the definition contained herein.\n (d) "Discount". The amount of a reduction in a bill for energy\nservices rendered to a vendor of energy services or a public utility\nservice by a utility in accordance with the requirements of section\ntwenty-five-t of this article, equal to the special rebates made by such\nvendor or public utility service to eligible energy users.\n (e) "Hotel". A building or portion of it which is regularly used and\nkept open as such for the lodging of guests. The term "hotel" includes\nan apartment hotel, a motel, boarding house or club, whether or not\nmeals are served.\n (f) "Commercial development pressure areas". Such portions of the\nfollowing areas as may be designated by local law enacted pursuant to\nsection twenty-five-t of this article experiencing or likely to\nexperience shortages of space suitable for manufacturing activities but\nneeding the benefits available under this article as an inducement to\neconomic development:\n In the city of New York, (1) the area delineated by a line beginning\nat the point of intersection of the Manhattan, Queens and Brooklyn\nborough lines and running easterly along the Queens borough line to the\ncenter line of Greenpoint Avenue; thence easterly along the center line\nof Greenpoint Avenue to the center line of Review Avenue; thence\nnortherly along the center line of Review Avenue to the center line of\nBorden Avenue; thence easterly along the center line of Borden Avenue to\nthe center line of Van Dam Street; thence northerly along the center\nline of Van Dam Street to the center line of Skillman Avenue; thence\neasterly along the center line of Skillman Avenue to the center line of\nHoneywell Street; thence northerly along the center line of Honeywell\nStreet to the center line of Northern Boulevard; thence southwesterly\nalong the center line of Northern Boulevard to the center line of\nFortieth Road; thence westerly along the center line of Fortieth Road to\nthe center line of Twenty-ninth Street; thence southerly along the\ncenter line of Twenty-ninth Street to the center line of Forty-first\nAvenue; thence westerly along the center line of Forty-first Avenue to\nthe Queens borough line; thence southerly along the Queens borough line\nto the point of beginning; and\n (2) the area delineated by a line beginning at the point of\nintersection of the Brooklyn borough line and the center line of Fulton\nStreet and running southerly along the center line of Fulton Street to\nthe center line of Prospect Street; thence easterly along the center\nline of Prospect Street to the center line of Adams Street; thence\nsoutherly along the center line of Adams Street to the center line of\nTillary Street; thence easterly along the center line of Tillary Street\nto the center line of Duffield Street; thence northerly along the center\nline of Duffield Street to the Brooklyn borough line; thence westerly\nalong the Brooklyn borough line to the point of beginning.\n (g) "Eligible areas". Areas of a city designated by local law enacted\npursuant to section twenty-five-t of this article as needing the\nbenefits available under this article as an inducement to economic\ndevelopment, provided that the area lying south of the center line of\n96th Street, in the borough of Manhattan in the city of New York, shall\nnot be so designated.\n (h) "Manufacturing activity". An activity involving the assembly of\ngoods to create a different article or the processing, fabrication or\npackaging of goods.\n (i) "Special rebate". The amount of a reduction in a bill rendered by\na utility, a public utility service or a vendor of energy services for\nenergy services to an eligible energy user or a qualified eligible\nenergy user, or an agent of either, or an on-site cogenerator or a clean\non-site cogenerator, and calculated in accordance with the applicable\nprovisions of section twenty-five-t of this article and the rules of the\ncity agency designated by the local law enacted pursuant to such\nsection.\n (j) "Eligible charges", "eligible public utility service charges" and\n"eligible on-site cogenerator charges". (1)(i) Eligible charges are\ncharges for energy services purchased from a utility or from a vendor of\nenergy services at a rate or rates established pursuant to an order or\nrule of the New York state public service commission or the federal\nenergy regulatory commission, other than charges for the purchase of the\ncommodity of natural gas or electricity, and shall include applicable\nrate reductions for economic development or similar purposes, and all\ntaxes payable thereon and shall exclude charges in accordance with\nparagraph two of this subdivision.\n (ii) Eligible public utility service charges are actual charges for\nenergy services made by a public utility service, and shall include all\ntaxes payable thereon, and shall exclude charges in accordance with\nparagraph two of this subdivision, provided, however, that the\ncommissioner of the agency designated by local law enacted pursuant to\nsection twenty-five-t of this article may by rule adjust eligible public\nutility service charges for purposes of adjusting the special rebate\nbased thereon to an amount that would be comparable to the special\nrebate available to a comparable customer of a utility as determined by\nsuch commissioner.\n (iii) Except as otherwise provided in paragraph five of subdivision\n(a) of section twenty-five-t of this article with respect to on-site\ncogenerators certified before July first, two thousand three, and clean\non-site cogenerators certified after June thirtieth, two thousand three,\neligible on-site cogenerator charges are charges for energy services\npurchased from a utility related to the delivery of natural gas to an\non-site cogenerator at rates established pursuant to an order or rule of\nthe New York state public service commission or the federal energy\nregulatory commission, and shall include applicable rate reductions for\neconomic development or similar purposes, and all taxes payable thereon\nand shall exclude charges in accordance with paragraph two of this\nsubdivision.\n (2) (i) Eligible charges, eligible public utility service charges,\nand, except as otherwise provided in paragraph five of subdivision (a)\nof section twenty-five-t of this article with respect to eligible\non-site cogenerators certified before July first, two thousand three,\nand clean on-site cogenerators certified after June thirtieth, two\nthousand three, eligible on-site cogenerator charges shall not include\nthe following charges: (A) any special charges on bills relating to\nenergy services, including, but not limited to, collection charges, late\npayment charges or excess distribution charges, or any additional fee\ncharged by a vendor of energy services to an eligible energy user,\nqualified eligible energy user or on-site cogenerator for energy\nservices, as authorized by subdivision (a) of this section; (B) charges\nfor such energy services that are resold; and (C) charges for energy\nservices used for heating the premises.\n (ii) Eligible charges and eligible public utility service charges\nshall not include charges for energy services used in the production of\nelectricity.\n (iii) Eligible on-site cogenerator charges shall not include charges\nmade by a utility for energy services relating to the sale or delivery\nof natural gas used by an on-site cogenerator to generate electricity\nused by any user not located on the same site as the on-site cogenerator\nor by any user for purposes of heating any premises.\n (iv) Charges related to energy used for space heating, when not\nprecisely ascertainable, shall be determined, for the purposes of this\nparagraph, in accordance with methods or formulas reasonably designed to\napproximate them that are devised by those designated by local law\nenacted pursuant to section twenty-five-t of this article.\n (k) "Vendor of energy services". Any person, corporation or other\nentity not subject to the jurisdiction and general supervision of the\nNew York state public service commission that furnishes or sells energy\nservices to an eligible energy user, a qualified eligible energy user or\nan on-site cogenerator as an incident to leasing, subleasing, licensing\nor otherwise permitting such user to rent or occupy premises of such\nvendor.\n (l) "Empowerment zone". Empowerment zone shall mean an area within a\ncity having a population of one million or more that has been designated\nas an empowerment zone pursuant to the Omnibus Budget Reconciliation Act\nof 1993.\n (m) "Public utility service". A service established by a city having a\npopulation of one million or more by local law pursuant to article\nfourteen-A of the general municipal law, including the New York city\npublic utility service.\n (n) "Empire zone". Empire zone shall mean an area within a city having\na population of one million or more that has been designated as an\nempire zone pursuant to article eighteen-B of the general municipal law.\n (o) "Utility". A person that provides energy services within a city\nhaving a population of one million or more and is subject to the\njurisdiction and general supervision of the New York state public\nservice commission and to a tax imposed by such city pursuant to\nsubdivision (a) of section twelve hundred one of the tax law, except\nthat the Long Island Power Authority, or its subsidiary, is a utility\nunder this subdivision to the extent that it provides energy services\nwithin a city having a population of one million or more and makes a\npayment to such city that is equivalent to the tax imposed on utilities\npursuant to such subdivision (a) of section twelve hundred one of the\ntax law.\n (p) "Energy conservation measures". The construction, alteration,\nrepair or improvement to a building or separate leased space within a\nbuilding or to equipment affixed to, contained in, or on the grounds of\na building, which reduces energy consumption.\n (q) "Simple payback period". The number of years necessary to recoup\nthe cost of an energy conservation measure through annual energy cost\nsavings.\n (r) "Qualified eligible energy user". (1) A user of energy services\nthat would have qualified as an eligible energy user under paragraph one\nof subdivision (a) of this section if the reference to May third,\nnineteen hundred eighty-five were deemed a reference to December\nthirty-first, nineteen hundred ninety, and that (i) agrees to expand the\nnumber of its full-time employees, within two years from the date of\ncertification, by fifty employees or ten percent of the number of its\nfull-time employees as of January first, nineteen hundred ninety-one,\nwhichever is greater; provided, however, that one economically\ndisadvantaged or unemployed person hired as a full-time employee after\nthe date of certification shall be counted as two full-time employees\nand two part-time employees shall be counted as one full-time employee;\nand provided, further, that the agency designated by local law enacted\npursuant to section twenty-five-t of this article may define by rule\nfull-time employees, part-time employees, unemployed persons,\neconomically disadvantaged persons, and criteria for continued\neligibility in relation to fluctuations in employment levels; or (ii)\ndevelops, implements, and maintains, in consultation with the New York\ncity department of employment, a job training program which shall be\ncertified and monitored by such department and which shall meet the\nstandards for such programs as are established by the rules of the\nagency designated by local law enacted pursuant to section twenty-five-t\nof this article; or\n (2) Any non-residential user of energy services, except a government\nagency, public benefit corporation, or instrumentality thereof, hotel,\nor retail vendor as defined in this section, that occupies, operates or\nmanages targeted eligible premises.\n An occupant of targeted eligible premises described in paragraph one\nor two of this subdivision shall not be a qualified eligible energy user\nunless the energy services used by such occupant at such premises are\nindividually and accurately metered and billed so as to enable a\ndetermination of the occupant's usage of such energy services to be\nmade.\n (s) "Targeted eligible premises". (1) non-residential premises that\nare wholly contained in property that is eligible to obtain benefits\nunder title two-D of article four of the real property tax law, or would\nbe eligible to receive benefits under such article except that such\nproperty is exempt from real property taxation and the requirements of\nparagraph (b) of subdivision seven of section four hundred\neighty-nine-dddd of such law have not been satisfied, provided that\napplication for such benefits was made after December thirty-first,\nnineteen hundred ninety and prior to November first, two thousand, that\nconstruction or renovation of such premises was described in such\napplication, that such premises have been substantially improved by such\nconstruction or renovation so described, that twice the minimum required\nexpenditure as defined in such title has been made, and that such real\nproperty is located in an eligible area; or\n (2) non-residential premises that are wholly contained in real\nproperty that has obtained approval after December thirty-first,\nnineteen hundred ninety and prior to November first, two thousand for\nfinancing by an industrial development agency established pursuant to\narticle eighteen-A of the general municipal law, provided that such\nfinancing has been used in whole or in part to substantially improve\nsuch premises by construction or renovation, and that expenditures have\nbeen made for improvements to such real property in excess of forty per\ncentum of the value at which such real property was assessed for tax\npurposes for the tax year in which such improvements commenced, and that\nsuch real property is located in an eligible area; or\n (3) non-residential premises that are wholly contained in real\nproperty owned by the city of New York or the New York state urban\ndevelopment corporation, or a subsidiary thereof, a lease for which was\napproved in accordance with the applicable provisions of the charter of\nsuch city, and such approval was obtained after December thirty-first,\nnineteen hundred ninety and prior to November first, two thousand,\nprovided that such premises were constructed or renovated subsequent to\nsuch approval, that expenditures have been made subsequent to such\napproval for improvements to such real property by construction or\nrenovation in excess of forty per centum of the value at which such real\nproperty was assessed for tax purposes for the tax year in which such\nimprovements commenced, and that such real property is located in an\neligible area; or\n (4) non-residential premises contained in real property not located in\nan eligible area that otherwise meet the criteria of paragraph one, two\nor three of this subdivision, where such premises shall be used\nprimarily for manufacturing activities and provided that such premises\nshall be improved as a result of expenditures in an amount in excess of\ntwenty per centum of the assessed value of such real property\nattributable to such premises at which such real property was assessed\nfor tax purposes for the tax year in which such improvements commenced.\nAttribution of value shall be made in accordance with the rules of the\ncity agency designated in the local law enacted pursuant to section\ntwenty-five-t of this article. Only expenditures for improvements that\nhave been identified as part of the construction or renovation project\nmeeting the requirements of paragraph one, two or three of this\nsubdivision, whichever is applicable, shall qualify for purposes of\nsatisfying the minimum expenditure requirements of this subdivision.\n Provided, however, that no such premises described in paragraph one,\ntwo, three or four of this subdivision, contained in a newly constructed\nstructure or building, shall come within this definition unless such\npremises meet the requirements of the New York state energy conservation\nconstruction code promulgated pursuant to article eleven of the energy\nlaw or, if applicable, a municipal code authorized pursuant to such\narticle. And provided, further, that (i) the qualified eligible energy\nuser shall submit on an annual basis proof that the heating and cooling\nsystems within the premises continue to meet the performance standards\nspecified in section 7813.21 of the energy conservation construction\ncode, or such predecessor section to which the premises, when\nconstructed or substantially renovated, were subject and (ii) to the\nextent that the cost of motors or lighting equipment described in\nsections 7813.52 and 7813.53 of the energy conservation construction\ncode is included as part of the minimum expenditures required in\nparagraph one, two, three or four of this subdivision, the qualified\neligible energy user shall certify that all such compatible equipment\nwith a simple payback period of five years or less has been installed.\n (t) "Energy services". The transmission and distribution of\nelectricity or gas, and such other services that are associated with\nsuch transmission and distribution as shall be designated as energy\nservices by rule of the commissioner of the agency designated by local\nlaw enacted pursuant to section twenty-five-t of this article as such\ncommissioner deems necessary to promote economic development, provided\nthat energy services shall not include the commodity of gas or\nelectricity.\n (u) "On-site cogenerator". A person, other than a utility, that owns\nan electric generating facility that simultaneously or sequentially\nproduces electricity and useful thermal energy, provided that\nsubstantially all of such electricity shall be used by an eligible\nenergy user that occupies the same site as such generating facility. An\non-site cogenerator may be the same or a separate person as such\neligible energy user.\n (v) "Clean on-site cogenerator". An on-site cogenerator, the\nelectricity generating facility of which has an emission rate for\nnitrous oxides of no more than three tenths of one pound per megawatt\nhour. The commissioner of the agency designated by local law enacted\npursuant to section twenty-five-t of this article shall establish by\nrule a megawatt hour equivalent for any useful thermal energy produced\nby the cogenerator for purposes of determining benefits under this\narticle.\n