§ 5-12 — Premises

§ 5-12 Premises.

(a) Criteria for replacement premises. (1) In order for an applicant's premises to qualify as replacement premises: (i) the applicant must take occupancy of such premises after May 3, 1985; (ii) the applicant must continue such occupancy while a special rebate is received; (iii) the premises must: (A) be non-residential; (B) be premises for which an applicant has entered into a written agreement to buy and/or lease after May 3, 1985; (C) be located in an eligible move-in area; (D) except as otherwise provided in subparagraph (E) of this paragraph, be premises with provisions to receive energy services either: (I) from a utility; (II) a vendor; or (III) NYCPUS; and (E) if such premises receive electricity from an on-site cogenerator, such on-site cogenerator shall occupy the same site as such premises; (iv) the premises such applicant previously occupied must have been located in an eligible move-out area, and the applicant must have occupied such premises for a continuous period of twenty-four (24) months during the thirty (30) month period immediately preceding the applicant taking occupancy of its new premises. (2) An applicant's new premises shall not be considered replacement premises if the new premises are occupied as the result of a merger of the applicant with or into any other person, firm or entity, or the acquisition, by the applicant, of all or substantially all of the capital stock or assets and properties of any other person, firm or entity, unless: (i) the new premises were formerly occupied by such other person, firm or entity; (ii) such other person, firm or entity: (i) had substantially ceased business operations at the new premises prior to occupancy by the applicant; and (ii) had either: (A) filed or acquiesced in the filing against it of a petition for any relief under any bankruptcy or similar law for the protection of debtors, prior to occupancy by the applicant; or (B) applied for or acquiesced in the appointment of a trustee or receiver for all or a substantial portion of its assets and properties, prior to occupancy by the applicant; (iii) the applicant transfers or relocates, from its previously occupied premises to the new premises, a substantial amount of personnel, and/or machinery or equipment, and/or other tangible assets, and/or executory contracts (contracts not yet performed in whole or in part, and which will be performed at the new premises); and (iv) the applicant conducts, at the new premises, the same type of business conducted at its previously occupied premises and/or a type of business reasonably related thereto or constituting a reasonable expansion or growth therefrom. (b) Criteria for specially eligible premises. (1) Specially eligible premises shall meet the applicable requirements of subdivision (i) of § 22-601 of the Code and: (i) the real property and/or building in which such premises are located shall be substantially improved by construction or renovation as described or identified in either: (A) an ICIP pre-application or application filed by the owner, manager or operator of the real property and/or building; or (B) an IDA application filed by such owner, operator or manager; or (C) a lease for the real property submitted for approval to UDC or to the City in accordance with the applicable Charter provisions (provided that such lease need not describe or identify buildings located or to be located on such real property), whichever is applicable; (ii) the expenditures for such construction or renovation required by subdivision (i) of § 22-601 of the Code shall occur either: (A) subsequent to the filing of such final application or preliminary application with ICIP, and the issuance of a building permit, if required, for such construction or renovation; or (B) subsequent to the receipt of an inducement resolution from IDA for the project described in such IDA application; or (C) subsequent to the approval of the lease described in subparagraph (4) or (5) of subdivision (i) of § 22-601 of the Code by UDC or by the City in accordance with the applicable Charter provisions; (iii) for applications made after the effective date of these rules, the expenditures made for such construction or renovation described in paragraph (1) of this subdivision (b) of this 66 RCNY § 5-12, must be in excess of ten percent (10%) of the assessed value of the real property and building in the tax year in which such construction or renovation commenced; (iv) the real property and building are located in an eligible move-in area; (v) the premises have provisions to receive energy services either: (I) directly from a utility; or (II) from a vendor; or (III) from NYCPUS; (vi) the applicant must take occupancy of such premises and continue in such occupancy while benefits are received; (vii) if such premises receive electricity from an on-site cogenerator, such on-site cogenerator shall occupy the same site as such premises; and (viii) if the applicant's premises are contained in a newly constructed building, such building must meet the requirements of the New York State Energy Conservation Construction. (2) Notwithstanding the provisions set forth in subparagraph (A), paragraph (1) of this subdivision (b), an applicant that occupies premises within a building that would otherwise qualify as eligible to receive benefits under ICIP except that the real property on which such building is located is exempt from real property taxation, may be eligible as an occupant of premises within specially eligible premises, if all other applicable requirements of eligibility of this Subchapter B are met and such applicant receives a certification from DOF stating that the premises are within a building for which expenditures for improvements have been made in compliance with the applicable provisions of subdivision (i) of § 22-601 of the Code and this paragraph (b). (c) Special criteria applicable to manufacturing premises located in Manhattan below 96th Street. Non-residential premises contained in real property located in the area lying south of the center line of 96th Street in the Borough of Manhattan may qualify as specially eligible premises if the criteria in paragraph (4) of subdivision (i) of § 22-601 of the Code and the provisions of subdivision (b) of this 66 RCNY § 5-12 for specially eligible premises are otherwise satisfied where such premises are used primarily for manufacturing activities, provided 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.