NY Gen City L § 25-S (2021)
2021 New York Laws GCT - General City Article 2-F - Rebates of Charges for Energy 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-three, 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-three  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-three, 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.