NY Energy L § 9-103 (2021)
2021 New York Laws ENG - Energy Article 9 - Energy Performance Contracts in Connection With Public Buildings and Facilities 9-103 - Energy Performance Contracts.

§  9-103.  Energy performance contracts.  1. Notwithstanding any other   provision of law, any agency,  municipality,  or  public  authority,  in   addition  to  existing  powers,  is  authorized  to  enter  into  energy   performance contracts of up to  thirty-five  years  duration,  provided,   that  the  duration of any such contract shall not exceed the reasonably   expected useful life of the energy facilities or  equipment  subject  to   such contract.2.  Any  energy  performance  contract  entered  into by any agency or   municipality shall contain the following clause: "This contract shall be   deemed executory only to the  extent  of  the  monies  appropriated  and   available  for  the purpose of the contract, and no liability on account   therefor shall be incurred beyond the  amount  of  such  monies.  It  is   understood  that  neither  this  contract  nor any representation by any   public employee or officer creates any  legal  or  moral  obligation  to   request,  appropriate  or  make  available monies for the purpose of the   contract."3. In the case  of  a  school  district  or  a  board  of  cooperative   educational  services,  an  energy  performance  contract  shall  be  an   ordinary contingent expense, and shall in no event be  construed  as  or   deemed a lease or lease-purchase of a building or facility, for purposes   of the education law.4.  Agencies, municipalities, and public authorities are encouraged to   consult with and seek advice and assistance  from  the  New  York  state   energy  research and development authority concerning energy performance   contracts.5. Notwithstanding any other provision of law, in order to  convey  an   interest  in  real property necessary for the construction of facilities   or the operation of equipment provided  for  in  an  energy  performance   contract,  any agency, municipality or public authority may enter into a   lease of such real property to which it holds title or  which  is  under   its administrative jurisdiction as is necessary for such construction or   operation, with an energy performance contractor, for the same length of   time  as the term of such energy performance contract, and on such terms   and conditions as may be agreeable to the parties thereto  and  are  not   otherwise  inconsistent  with  law,  and  notwithstanding that such real   property may remain  useful  to  such  agency,  municipality  or  public   authority  for  the  purpose for which such real property was originally   acquired or devoted or for which such real property is being used.6. In lieu of any other competitive procurement or acquisition process   that may apply pursuant to  any  other  provision  of  law,  an  agency,   municipality,  or  public  authority  may  procure an energy performance   contractor by issuing and advertising a written request for proposals in   accordance with procurement or internal control policies, procedures, or   guidelines that  the  agency,  municipality,  or  public  authority  has   adopted  pursuant to applicable provisions of the state finance law, the   executive law, the general municipal law, or the public authorities law,   as the case may be.7. Sections one hundred three and one hundred nine-b  of  the  general   municipal  law  shall  not  apply  to an energy performance contract for   which a written request for proposals is issued pursuant to  subdivision   six of this section.8.    In  the  case  of  a  school  district or a board of cooperative   educational services, an energy performance contract shall be  developed   and  approved  pursuant to the requirements of this section and pursuant   to  regulations  promulgated  by  the  commissioner  of   education   in   consultation  with  the  New  York state energy research and development   authority.  Such regulations shall include, but shall not be limited to:   a list of the appropriate  type  of  projects  that  qualify  as  energy    performance  contracts;  an approval process that includes review of the   type and nature of the proposed project, the scope  and  nature  of  the   work  to be performed, and a detailed breakdown of the energy savings to   be  derived  each  year  and  for the duration of the energy performance   contract; and a  process  for  ensuring  that  districts  have  obtained   financing  at  the lowest cost possible.  Such regulations shall require   that all energy performance  contracts  which  contain  maintenance  and   monitoring  charges  as  part  of  the energy performance contract price   state such maintenance and monitoring charges separately in the contract   in a clear and conspicuous manner.  Such regulations shall not apply  to   energy performance contracts entered into prior to the effective date of   such  regulations,  nor shall they apply to energy performance contracts   for which a request for proposals was issued  prior  to  such  effective   date.