Bill Text: NY S06949 | 2013-2014 | General Assembly | Amended
Bill Title: Permits agencies, municipalities and public authorities to enter into power purchase agreements.
Spectrum: Moderate Partisan Bill (Democrat 7-2)
Status: (Introduced - Dead) 2014-05-09 - PRINT NUMBER 6949A [S06949 Detail]
Download: New_York-2013-S06949-Amended.html
S T A T E O F N E W Y O R K
________________________________________________________________________
6949--A
I N S E N A T E
April 7, 2014
___________
Introduced by Sen. MARCHIONE -- read twice and ordered printed, and when
printed to be committed to the Committee on Energy and Telecommuni-
cations -- committee discharged, bill amended, ordered reprinted as
amended and recommitted to said committee
AN ACT to amend the energy law, in relation to permitting agencies,
municipalities and public authorities to enter into power purchase
agreements
THE PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND ASSEM-
BLY, DO ENACT AS FOLLOWS:
1 Section 1. Section 9-102 of the energy law is amended by adding a new
2 subdivision 5 to read as follows:
3 5. "SOLAR POWER PURCHASE AGREEMENT" MEANS AN AGREEMENT FOR THE
4 PURCHASE OF ELECTRICITY, PRODUCED BY SOLAR POWERED ELECTRICITY GENERAT-
5 ING SYSTEMS, IN WHICH A PERSON AGREES TO INSTALL, MAINTAIN AND MANAGE
6 SOLAR POWERED ELECTRICITY GENERATING SYSTEMS OR EQUIPMENT ON REAL PROP-
7 ERTY OF AN AGENCY, MUNICIPALITY OR PUBLIC AUTHORITY, TO PRODUCE SUCH
8 ELECTRICITY WITH NO CAPITAL OUTLAY OR INVESTMENT BY THE AGENCY, MUNICI-
9 PALITY OR PUBLIC AUTHORITY, IN EXCHANGE FOR A LONG TERM AGREEMENT BY
10 SUCH AGENCY, MUNICIPALITY OR PUBLIC AUTHORITY TO PURCHASE THE ELECTRIC-
11 ITY PRODUCED BY SUCH SOLAR POWERED ELECTRICITY GENERATING SYSTEMS OR
12 EQUIPMENT AT A CURRENT COST PER KILOWATT HOUR LESS THAN THAT OFFERED BY
13 THE UTILITY COMPANY SERVICING SUCH AGENCY, MUNICIPALITY OR PUBLIC
14 AUTHORITY AND AT A TOTAL COST OVER THE LIFE OF THE AGREEMENT THAT IS
15 REASONABLY DETERMINED BY THE GOVERNING BOARD OF SUCH AGENCY, MUNICI-
16 PALITY OR PUBLIC AUTHORITY TO BE LESS THAN IT WOULD OTHERWISE PAY TO THE
17 UTILITY SERVICING ITS LOCATION.
18 S 2. Section 9-103 of the energy law, as added by chapter 733 of the
19 laws of 1985, subdivision 1 as amended and subdivision 5 as added by
20 chapter 638 of the laws of 1989, subdivision 3 as amended and subdivi-
21 sions 6 and 7 as added by chapter 368 of the laws of 1994, subdivision 4
22 as amended by chapter 83 of the laws of 1995 and subdivision 8 as added
23 by section 78 of part A of chapter 436 of the laws of 1997, is amended
24 to read as follows:
EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
[ ] is old law to be omitted.
LBD14485-02-4
S. 6949--A 2
1 S 9-103. Energy performance contracts AND SOLAR POWER PURCHASE AGREE-
2 MENTS. 1. Notwithstanding any other provision of law, any agency, muni-
3 cipality, or public authority, in addition to existing powers, is
4 authorized to enter into energy performance contracts of up to thirty-
5 five years duration OR SOLAR POWER PURCHASE AGREEMENTS OF UP TO TWENTY
6 YEARS DURATION, provided, that the duration of any such contract OR
7 AGREEMENT shall not exceed the reasonably expected useful life of the
8 energy facilities, SOLAR POWERED ELECTRICITY GENERATING SYSTEMS or
9 equipment subject to such contract; AND PROVIDED FURTHER THAT WITH
10 RESPECT TO SOLAR POWER PURCHASE AGREEMENTS, SUCH AGENCY, MUNICIPALITY OR
11 PUBLIC AUTHORITY IS AUTHORIZED TO RESELL ANY EXCESS ELECTRICITY GENER-
12 ATED BY SUCH SOLAR POWERED ELECTRICITY GENERATING SYSTEMS OR EQUIPMENT
13 THROUGH THE USE OF A NET METERING SYSTEM, ELECTRICITY CREDITS OR OTHER
14 MEANS APPROVED BY THE NEW YORK STATE ENERGY RESEARCH AND DEVELOPMENT
15 AUTHORITY, THE NEW YORK INDEPENDENT SYSTEM OPERATORS OR THE PUBLIC
16 SERVICE COMMISSION.
17 2. Any energy performance contract entered into by any agency or muni-
18 cipality shall contain the following clause: "This contract shall be
19 deemed executory only to the extent of the monies appropriated and
20 available for the purpose of the contract, and no liability on account
21 therefor shall be incurred beyond the amount of such monies. It is
22 understood that neither this contract nor any representation by any
23 public employee or officer creates any legal or moral obligation to
24 request, appropriate or make available monies for the purpose of the
25 contract."
26 3. In the case of a school district or a board of cooperative educa-
27 tional services, an energy performance contract OR SOLAR POWER PURCHASE
28 AGREEMENT shall be an ordinary contingent expense, and shall in no event
29 be construed as or deemed a lease or lease-purchase of a building or
30 facility, for purposes of the education law.
31 4. Agencies, municipalities, and public authorities are encouraged to
32 consult with and seek advice and assistance from the New York state
33 energy research and development authority concerning energy performance
34 contracts AND/OR SOLAR POWER PURCHASE AGREEMENTS.
35 5. Notwithstanding any other provision of law, in order to convey an
36 interest in real property necessary for the construction of facilities
37 or the operation of equipment provided for in an energy performance
38 contract OR SOLAR POWER PURCHASE AGREEMENT, any agency, municipality or
39 public authority may enter into a lease of such real property to which
40 it holds title or which is under its administrative jurisdiction as is
41 necessary for such construction or operation, with an energy performance
42 contractor, OR SOLAR POWER PURCHASE AGREEMENT for the same length of
43 time as the term of such energy performance contract OR SOLAR POWER
44 PURCHASE AGREEMENT, and on such terms and conditions as may be agreeable
45 to the parties thereto and are not otherwise inconsistent with law, and
46 notwithstanding that such real property may remain useful to such agen-
47 cy, municipality or public authority for the purpose for which such real
48 property was originally acquired or devoted or for which such real prop-
49 erty is being used.
50 6. In lieu of any other competitive procurement or acquisition process
51 that may apply pursuant to any other provision of law, an agency, muni-
52 cipality, or public authority may procure an energy performance OR SOLAR
53 POWER PURCHASE contractor by issuing and advertising a written request
54 for proposals in accordance with procurement or internal control poli-
55 cies, procedures, or guidelines that the agency, municipality, or public
56 authority has adopted pursuant to applicable provisions of the state
S. 6949--A 3
1 finance law, the executive law, the general municipal law, or the public
2 authorities law, as the case may be.
3 7. Sections one hundred three and one hundred nine-b of the general
4 municipal law shall not apply to an energy performance contract OR SOLAR
5 POWER PURCHASE AGREEMENT for which a written request for proposals is
6 issued pursuant to subdivision six of this section.
7 8. In the case of a school district or a board of cooperative educa-
8 tional services, an energy performance contract shall be developed and
9 approved pursuant to the requirements of this section and pursuant to
10 regulations promulgated by the commissioner of education in consultation
11 with the New York state energy research and development authority. Such
12 regulations shall include, but shall not be limited to: a list of the
13 appropriate type of projects that qualify as energy performance
14 contracts; an approval process that includes review of the type and
15 nature of the proposed project, the scope and nature of the work to be
16 performed, and a detailed breakdown of the energy savings to be derived
17 each year and for the duration of the energy performance contract; and a
18 process for ensuring that districts have obtained financing at the
19 lowest cost possible. Such regulations shall require that all energy
20 performance contracts which contain maintenance and monitoring charges
21 as part of the energy performance contract price state such maintenance
22 and monitoring charges separately in the contract in a clear and
23 conspicuous manner. Such regulations shall not apply to energy perform-
24 ance contracts entered into prior to the effective date of such regu-
25 lations, nor shall they apply to energy performance contracts for which
26 a request for proposals was issued prior to such effective date.
27 9. IN THE CASE OF A SCHOOL DISTRICT OR A BOARD OF COOPERATIVE EDUCA-
28 TIONAL SERVICES, A SOLAR POWER PURCHASE AGREEMENT SHALL BE DEVELOPED AND
29 APPROVED PURSUANT TO THE REQUIREMENTS OF THIS SECTION. THE COMMISSIONER
30 OF EDUCATION IN CONSULTATION WITH THE NEW YORK STATE ENERGY RESEARCH AND
31 DEVELOPMENT AUTHORITY SHALL PROMULGATE SUCH REGULATIONS AS DETERMINED TO
32 BE NECESSARY TO REGULATE THE CONSTRUCTION, INSTALLATION AND MAINTENANCE
33 OF SOLAR POWERED ELECTRICITY GENERATING SYSTEMS OR EQUIPMENT AND TO
34 REQUIRE THAT ALL SOLAR POWER PURCHASE AGREEMENTS WHICH CONTAIN MAINTE-
35 NANCE AND MONITORING CHARGES STATE SUCH MAINTENANCE AND MONITORING
36 CHARGES SEPARATELY IN THE AGREEMENT IN A CLEAR AND CONSPICUOUS MANNER.
37 SUCH REGULATIONS SHALL NOT APPLY TO SOLAR POWER PURCHASE AGREEMENTS
38 ENTERED INTO PRIOR TO THE EFFECTIVE DATE OF SUCH REGULATIONS, NOR SHALL
39 THEY APPLY TO SOLAR POWER PURCHASE AGREEMENTS FOR WHICH A REQUEST FOR
40 PROPOSALS WAS ISSUED PRIOR TO SUCH EFFECTIVE DATE.
41 S 3. This act shall take effect immediately.
