* Article 309 Benchmarking Energy and Water Use and Disclosure of Energy Efficiency Scores and Grades

The energy and water use of city buildings and covered buildings shall be benchmarked in accordance with this article.

As used in this article, the following terms shall have the following meanings:

BENCHMARK. To input and submit to the benchmarking tool the total use of energy and water for a building for the previous calendar year and other descriptive information for such building as required by the benchmarking tool.

BENCHMARKING TOOL. The internet-based database system developed by the United States environmental protection agency, and any complementary interface designated by the office of long-term planning and sustainability, to track and assess the energy and water use of certain buildings relative to similar buildings.

CITY BUILDING. A building that is more than 10,000 gross square feet (929 m²), as it appears in the records of the department of finance, that is owned by the city or for which the city regularly pays all of the annual energy bills, provided that two or more buildings on the same tax lot shall be deemed to be one building.

Exception: The term "city building" shall not include:

1. Any building owned by the city that participates in the tenant interim lease apartment purchase program; or
2. Any building owned by the city that (i) is 25,000 gross square feet (4645 m²) or less, as it appears in the records of the department of finance, and (ii) participates in a program administered by the department of housing preservation and development.

COVERED BUILDING. As it appears in the records of the department of finance: (i) a building that exceeds 25,000 gross square feet (4645 m²), (ii) two or more buildings on the same tax lot that together exceed 100,000 gross square feet (9290 m²), or (iii) two or more buildings held in the condominium form of ownership that are governed by the same board of managers and that together exceed 100,000 gross square feet (9290 m²), or (iv) a city building.

Exceptions: The term "covered building" shall not include:

1. Any building owned by the city that participates in the tenant interim lease apartment purchase program.
2. Real property classified as class one pursuant to subdivision one of section one thousand eight hundred two of the real property tax law.
3. Real property, not more than three stories, consisting of a series of attached, detached or semi-detached dwellings, for which ownership and the responsibility for maintenance of the HVAC systems and hot water heating systems is held by each individual dwelling unit owner, and with no HVAC system or hot water heating system in the series serving more than two dwelling units, as certified by a registered design professional to the department.

DATA CENTER. A room or rooms used primarily to house high density computing equipment, such as server racks, used for data storage and processing.

DWELLING UNIT. A single unit consisting of one or more habitable rooms, occupied or arranged to be occupied as a unit separate from all other units within a building, and used primarily for residential purposes and not primarily for professional or commercial purposes.

ENERGY. Electricity, natural gas, fuel oil and steam.

OWNER. The owner of record, provided that "owner" shall be deemed to include: (i) the net lessee in the case of a building subject to a net lease with a term of at least forty-nine years, inclusive of all renewal options, (ii) the board of managers in the case of a condominium, and (iii) the board of directors in the case of a cooperative apartment corporation.

TENANT. Any tenant, tenant-stockholder of a cooperative apartment corporation, condominium unit owner or other occupant.

*Section 28-309.2 was amended by: Local Law 133 of 2016. This law has an effective date of October 31, 2016.

No later than May 1, 2010, and no later than every May first thereafter, any city building shall be benchmarked by the agency or entity primarily responsible for the management of such building, in coordination with the department of citywide administrative services with respect to energy use, and with the New York city department of environmental protection with respect to water use. Benchmarking of water use shall not be required unless the building was equipped with automatic meter reading equipment by the New York city department of environmental protection for the entirety of the previous calendar year. The city shall maintain such documents as the department determines are necessary for the purpose of carrying out the provisions of this article.

The owner of a covered building, other than a city building, shall annually benchmark such covered building no later than May 1, 2011, and no later than every May 1 thereafter. Benchmarking of water use shall not be required unless the building was equipped with automatic meter reading equipment by the New York city department of environmental protection for the entirety of the previous calendar year. The owner or the owner's representative performing the benchmarking shall consult with the operating staff of the building, as appropriate. Information submitted to the benchmarking tool must be accurate and complete.



*Section 28-309.4 was amended by: Local Law 133 of 2016. This law has an effective date of October 31, 2016.

The owner shall submit information to the benchmarking tool for all utility accounts and addresses connected to the building, including those for separately metered tenant spaces. The owner shall obtain information for separately metered tenant spaces from the utility. If the utility does not have a program to provide such information, the owner shall make reasonable efforts to obtain such information from the tenant. Tenants shall have the obligation to provide such information.

*Section 28-309.4.1 was amended by: Local Law 133 of 2016. Sections 28-309.4.1.1 through 28-309.4.1.4 were repealed by: Local Law 133 of 2016. This law has an effective date of October 31, 2016.

An owner of a covered building shall maintain such records as the department determines are necessary for carrying out the purposes of this article, including but not limited to energy and water bills and reports or forms received from utilities and tenants. Where energy use within separately metered tenant spaces is omitted, records shall be maintained documenting the owner's efforts to obtain such information. All records shall be preserved for a period of three years, provided that the commissioner may consent to their destruction within that period or may require that such records be preserved longer than such period. At the request of the department, such records shall be made available for inspection and audit by the department at the place of business of the owner or at the offices of the department during normal business hours.

*Section 28-309.4.2 was amended by: Local Law 133 of 2016. This law has an effective date of October 31, 2016.

It shall be unlawful for the owner of a covered building to fail to benchmark pursuant to section 28-309.4. The commissioner shall classify such violation as a lesser violation. If, upon audit of a benchmarking report, the department finds that information submitted to the benchmarking tool was substantially inaccurate or incomplete, the department may reject the purported benchmarking and the owner shall be liable for a violation of section 28-309.4 as if no benchmarking had been performed.

Exception: Notwithstanding section 28-204.2, no civil penalty shall be imposed on the owner of a covered building for a violation of this section for such covered building if:

1. Such covered building (i) does not exceed 50,000 gross square feet (4645 m²), (ii) is not two or more buildings on the same tax lot that together exceeds 100,000 gross square feet (9290 m²), (iii) is not two or more buildings held in the condominium form of ownership that are governed by the same board of managers and that together exceed 100,000 gross square feet (9290 m²), and (iv) is not a city building;
2. Such owner requested, from the department or another agency designated pursuant to section 28-309.11, benchmarking assistance in connection with such building, and such request was made at least 60 days before the due date of the benchmarking report for which such violation was issued; and
3. Such owner corrects such violation within 60 days after the date of the notice of such violation.

*Section 28-309.4.3 was amended by: Local Law 133 of 2016. This law has an effective date of October 31, 2016.

Information shall be directly uploaded to the benchmarking tool in accordance with the following:

The office of long-term planning and sustainability shall encourage and facilitate any utility company or any other source authorized by the office of long-term planning and sustainability to upload directly to the benchmarking tool as soon as practicable, information necessary to benchmark a building.

*Section 28-309.5.1 was amended by: Local Law 133 of 2016. This law has an effective date of October 31, 2016.

The New York city department of environmental protection shall upload directly to the benchmarking tool information on water use at all buildings that were equipped with automatic meter reading equipment by the New York city department of environmental protection for the entirety of the previous calendar year and that are subject to the benchmarking requirements of this article.

The director of the office of long-term planning and sustainability may suspend all or part of the requirement to benchmark pursuant to this article upon a written finding that a technological deficiency in the benchmarking tool precludes compliance with this article. The director of the office of long-term planning and sustainability may lift all or part of any such suspension upon a written finding that such deficiency has been corrected. The office of long-term planning and sustainability shall notify the speaker of the city council, the department, the department of citywide administrative services, the New York city department of environmental protection and the department of finance promptly upon issuing a suspension or lifting a suspension pursuant to this section.

The department of finance shall:

1. Annually notify owners of covered buildings of their obligation to benchmark pursuant to section 28-309.4, provided that the failure of the department of finance to notify any such owner shall not affect the obligation of such owner to benchmark pursuant to such section.
2. Notify owners of covered buildings of any suspension or lifting of a suspension pursuant to section 28-309.6.
3. Make available to the department information regarding owners of covered buildings for which no benchmarking information was generated by the benchmarking tool.

The department of finance shall make information generated by the benchmarking tool available to the public on the internet no later than September 1 of the year in which the covered buildings are benchmarked. Such information shall include, but need not be limited to: (i) the energy use intensity, (ii) the water use per gross square foot, (iii) where available, a rating or score that compares the energy and water use of the building to that of similar buildings, and (iv) a comparison of data across calendar years for any years such building was benchmarked. Information generated by the benchmarking tool for the 2009 calendar year for city buildings, for the 2010 calendar year for covered buildings, and for the 2011 calendar year for covered buildings whose primary use is residential, as determined by the department of finance, shall not be disclosed.

Exception: Ratings or scores generated by the benchmarking tool for a covered building that contains a data center, television studio, and/or trading floor that together exceed ten percent of the gross square footage of any such building shall not be disclosed until the office of long-term planning and sustainability determines that the benchmarking tool can make adequate adjustments for such facilities. When the office of long-term planning and sustainability determines that the benchmarking tool can make such adjustments, it shall report such determination to the mayor and the speaker of the city council. Until such determination is made, the office of long-term planning and sustainability shall report biennially to the mayor and the speaker of the city council that the benchmarking tool is unable to make such adjustments.

*Section 28-309.8 was amended by: Local Law 133 of 2016. This law has an effective date of October 31, 2016.