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 thirteen, that construction or renovation of suchpremises 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 thirteen 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 thirteen, 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 alltaxes 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 energylaw 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.