S T A T E O F N E W Y O R K
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9040
2009-2010 Regular Sessions
I N A S S E M B L Y
June 21, 2009
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Introduced by M. of A. CAHILL -- (at request of the Governor) -- read
once and referred to the Committee on Energy
AN ACT to amend the public authorities law, in relation to energy effi-
ciency and clean energy initiatives of the power authority of the
state of New York, and providing for the repeal of such provisions
upon expiration thereof
THE PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND ASSEM-
BLY, DO ENACT AS FOLLOWS:
Section 1. Section 1005 of the public authorities law is amended by
adding a new subdivision 16 to read as follows:
16. (A) AS DEEMED FEASIBLE AND ADVISABLE BY THE TRUSTEES, TO FINANCE
AND DESIGN, DEVELOP, CONSTRUCT, IMPLEMENT, PROVIDE AND ADMINISTER ENER-
GY-RELATED PROJECTS, PROGRAMS AND SERVICES FOR ANY PUBLIC ENTITY AND ANY
RECIPIENT OF THE ECONOMIC DEVELOPMENT POWER, EXPANSION POWER, REPLACE-
MENT POWER, PRESERVATION POWER, HIGH LOAD FACTOR POWER, MUNICIPAL
DISTRIBUTION AGENCY POWER, AND THE POWER FOR JOBS PROGRAMS ADMINISTERED
BY THE AUTHORITY. IN ESTABLISHING AND PROVIDING HIGH PERFORMANCE AND
SUSTAINABLE BUILDING PROGRAMS AND SERVICES AUTHORIZED BY THIS SUBDIVI-
SION, THE AUTHORITY IS AUTHORIZED TO CONSULT STANDARDS, GUIDELINES,
RATING SYSTEMS, AND/OR CRITERIA ESTABLISHED OR ADOPTED BY OTHER ORGAN-
IZATIONS, INCLUDING BUT NOT LIMITED TO THE UNITED STATES GREEN BUILDING
COUNCIL UNDER ITS LEADERSHIP IN ENERGY AND ENVIRONMENTAL DESIGN (LEED)
PROGRAMS, THE GREEN BUILDING INITIATIVE'S GREEN GLOBES RATING SYSTEM,
AND THE AMERICAN NATIONAL STANDARDS INSTITUTE. THE SOURCE OF ANY FINANC-
ING AND/OR LOANS PROVIDED BY THE AUTHORITY FOR THE PURPOSES OF THIS
SUBDIVISION MAY BE THE PROCEEDS OF NOTES ISSUED PURSUANT TO SECTION ONE
THOUSAND NINE-A OF THIS TITLE, THE PROCEEDS OF BONDS ISSUED PURSUANT TO
SECTION ONE THOUSAND TEN OF THIS TITLE, OR ANY OTHER AVAILABLE AUTHORITY
FUNDS.
EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
[ ] is old law to be omitted.
LBD12056-06-9
A. 9040 2
(B) FOR THE PURPOSES OF THIS SUBDIVISION, THE FOLLOWING WORDS AND
TERMS SHALL HAVE THE FOLLOWING MEANINGS UNLESS THE CONTEXT INDICATES
ANOTHER MEANING OR INTENT:
(1) "AGENCY" MEANS ANY AGENCY, DEPARTMENT, OR OFFICE OF THE STATE OF
NEW YORK.
(2) "ENERGY-RELATED PROJECTS, PROGRAMS AND SERVICES" MEANS ENERGY
EFFICIENCY PROJECTS AND SERVICES, CLEAN ENERGY TECHNOLOGY PROJECTS AND
SERVICES, AND HIGH PERFORMANCE AND SUSTAINABLE BUILDING PROGRAMS AND
SERVICES, AND THE CONSTRUCTION, INSTALLATION AND/OR OPERATION OF FACILI-
TIES OR EQUIPMENT DONE IN CONNECTION WITH ANY SUCH PROJECTS, PROGRAMS OR
SERVICES.
(3) "ENERGY SERVICES CONTRACT" OR "CONTRACT" MEANS A CONTRACT PURSUANT
TO WHICH THE AUTHORITY PROVIDES ENERGY-RELATED PROJECTS, PROGRAMS AND
SERVICES.
(4) "HIGH PERFORMANCE AND SUSTAINABLE BUILDING PROGRAMS AND SERVICES"
MEANS PROGRAMS AND SERVICES RELATED TO THE RENOVATION AND RETROFITTING
OF BUILDINGS THROUGH THE INCORPORATION OF STANDARDS, GUIDELINES, RATING
SYSTEMS, AND/OR CRITERIA RELATING TO DESIGN AND BUILDING TECHNIQUES
ESTABLISHED BY THE AUTHORITY PURSUANT TO THIS SECTION, WHICH ARE
ADDRESSED TO SUCH ISSUES AS ENERGY EFFICIENCY, ENERGY CONSERVATION, THE
USE OF RENEWABLE ENERGY, THE REDUCTION OF AIR AND OTHER POLLUTION, AND
THE CONSERVATION OF MATERIALS AND RESOURCES SUCH AS WATER.
(5) "PUBLIC ENTITY" MEANS AN AGENCY, PUBLIC AUTHORITY, PUBLIC BENEFIT
CORPORATION, PUBLIC CORPORATION, MUNICIPAL CORPORATION, SCHOOL DISTRICT,
BOARD OF COOPERATIVE EDUCATIONAL SERVICES, PUBLIC UNIVERSITY, FIRE
DISTRICT, DISTRICT CORPORATION, OR SPECIAL IMPROVEMENT DISTRICT GOVERNED
BY A SEPARATE BOARD OF COMMISSIONERS.
(6) "PUBLIC AUTHORITY" MEANS A PUBLIC AUTHORITY FORMED BY OR UNDER THE
LAWS OF THE STATE OF NEW YORK TO THE EXTENT ITS FACILITIES ARE LOCATED
WITHIN THE STATE, AND THE PORT AUTHORITY OF NEW YORK AND NEW JERSEY TO
THE EXTENT THAT ITS FACILITIES ARE LOCATED WITHIN THE STATE.
(7) "PUBLIC BENEFIT CORPORATION" MEANS A PUBLIC BENEFIT CORPORATION AS
DEFINED IN SUBDIVISION FOUR OF SECTION SIXTY-SIX OF THE GENERAL
CONSTRUCTION LAW.
(8) "PUBLIC UNIVERSITY" MEANS THE CITY UNIVERSITY OF NEW YORK INCLUD-
ING ANY SENIOR COLLEGE OR COMMUNITY COLLEGE AS DEFINED IN SECTION
SIXTY-TWO HUNDRED TWO OF THE EDUCATION LAW, AND THE STATE UNIVERSITY OF
NEW YORK INCLUDING FOUR-YEAR COLLEGES ESTABLISHED PURSUANT TO SECTION
SIXTY-THREE HUNDRED SEVEN OF THE EDUCATION LAW AND COMMUNITY COLLEGES AS
DEFINED IN SECTION SIXTY-THREE HUNDRED ONE OF THE EDUCATION LAW.
(C) ANY PUBLIC ENTITY IS AUTHORIZED TO ENTER INTO AN ENERGY SERVICES
CONTRACT WITH THE AUTHORITY FOR ENERGY-RELATED PROJECTS, PROGRAMS AND
SERVICES THAT ARE AUTHORIZED BY THIS SUBDIVISION, PROVIDED THAT (I) THE
AUTHORITY ISSUES AND ADVERTISES WRITTEN REQUESTS FOR PROPOSALS FROM
THIRD PARTY PROVIDERS OF GOODS AND SERVICES IN ACCORDANCE WITH THE
AUTHORITY'S PROCUREMENT POLICIES, PROCEDURES AND/OR GUIDELINES, AND (II)
THE AUTHORITY SHALL NOT CONTRACT WITH A THIRD PARTY PROVIDER OF GOODS
AND SERVICES IF SUCH PERSON IS LISTED ON A DEBARMENT LIST MAINTAINED AND
PUBLISHED IN ACCORDANCE WITH NEW YORK LAW, AS BEING INELIGIBLE TO SUBMIT
A BID ON OR BE AWARDED ANY PUBLIC CONTRACT OR SUBCONTRACT WITH THE
STATE, ANY MUNICIPAL CORPORATION OR PUBLIC BODY.
(D)(I) NOTWITHSTANDING ANY OTHER PROVISION OF LAW TO THE CONTRARY, ANY
ENERGY SERVICES CONTRACT ENTERED INTO BY THE AUTHORITY WITH ANY PUBLIC
ENTITY: (1) MAY HAVE A TERM OF UP TO THIRTY-FIVE YEARS DURATION,
PROVIDED, HOWEVER, THAT THE DURATION OF ANY SUCH CONTRACT SHALL NOT
EXCEED THE REASONABLY EXPECTED USEFUL LIFE OF ANY FACILITIES OR EQUIP-
A. 9040 3
MENT CONSTRUCTED, INSTALLED OR OPERATED AS PART OF SUCH ENERGY-RELATED
PROJECTS, PROGRAMS AND SERVICES SUBJECT TO SUCH CONTRACT; AND (2) 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." A SCHOOL DISTRICT OR
BOARD OF COOPERATIVE EDUCATIONAL SERVICES MAY ONLY ENTER INTO AN ENERGY
SERVICES CONTRACT WITH THE AUTHORITY FOR SUCH MAXIMUM TERM AS IS
PRESCRIBED IN THE REGULATIONS PROMULGATED BY THE COMMISSIONER OF EDUCA-
TION OR THE USEFUL LIFE OF THE FACILITIES OR EQUIPMENT BEING
CONSTRUCTED, INSTALLED OR OPERATED, WHICHEVER IS LESS.
(II) NOTWITHSTANDING ANY OTHER PROVISION OF LAW TO THE CONTRARY, IN
ORDER TO PROVIDE AN INTEREST IN REAL OR OTHER PROPERTY NECESSARY FOR THE
CONSTRUCTION OF FACILITIES OR THE OPERATION OF EQUIPMENT PROVIDED FOR IN
AN ENERGY SERVICES CONTRACT, A PUBLIC ENTITY MAY ENTER INTO A LEASE OR
OTHER AGREEMENT WITH THE AUTHORITY CONCERNING REAL OR OTHER PROPERTY TO
WHICH IT HOLDS TITLE OR WHICH IS UNDER ITS ADMINISTRATIVE JURISDICTION,
AS IS NECESSARY FOR SUCH CONSTRUCTION OR OPERATION, FOR THE SAME LENGTH
OF TIME AS THE TERM OF THE ENERGY SERVICES 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 OR
OTHER PROPERTY MAY REMAIN USEFUL TO SUCH ENTITY FOR THE PURPOSE FOR
WHICH SUCH REAL OR OTHER PROPERTY WAS ORIGINALLY ACQUIRED OR DEVOTED OR
FOR WHICH SUCH REAL OR OTHER PROPERTY IS BEING USED.
(E) NOTHING CONTAINED IN THIS SUBDIVISION IS INTENDED TO LIMIT, IMPAIR
OR AFFECT THE AUTHORITY'S LEGAL AUTHORITY TO PROVIDE ENERGY EFFICIENCY
AND ENERGY SERVICES PROGRAMS THAT EXISTED AS OF THE EFFECTIVE DATE OF
THIS SUBDIVISION.
(F) THE AUTHORITY SHALL COMPLETE AND SUBMIT A REPORT, ON OR BEFORE
JANUARY THIRTY-FIRST, TWO THOUSAND TWELVE, ON THOSE ACTIVITIES UNDERTAK-
EN PURSUANT TO THIS SUBDIVISION TO THE GOVERNOR, THE SPEAKER OF THE
ASSEMBLY, THE TEMPORARY PRESIDENT OF THE SENATE, THE MINORITY LEADER OF
THE SENATE, THE MINORITY LEADER OF THE ASSEMBLY, THE CHAIR OF THE SENATE
FINANCE COMMITTEE, THE CHAIR OF THE ASSEMBLY WAYS AND MEANS COMMITTEE,
THE CHAIR OF THE ASSEMBLY ENERGY COMMITTEE AND THE CHAIR OF THE SENATE
ENERGY COMMITTEE.
S 2. This act shall take effect immediately and shall expire three
years after it shall have become a law; provided that such expiration
shall not affect the validity of any energy services contract authorized
by this act and entered into prior to its expiration.