Energy Audits and Retro-Commissioning of Base Building Systems

NYC Admin. Code tit. 28, ch. 3, art. 308

in effect

NYC Admin. Code § 28-308.1 Definitions.

§ 28-308.1 Definitions. As used in this article, the following terms shall have the following meanings: BASE BUILDING SYSTEMS. The systems or subsystems of a building that use energy and/or impact energy consumption including: 1. The building envelope. 2. The heating ventilating and air conditioning (HVAC) systems. 3. Conveying systems. 4. Domestic hot water systems. 5. Electrical and lighting systems. Exception: The term "base building systems" shall not include: 1. Systems or subsystems owned by tenants (other than a net lessee for a term of 49 years or more, inclusive of renewal options), condominium unit owners or cooperative unit shareholders, or a system or subsystems for which a tenant bears full maintenance responsibility and that is within the tenant's leased space and/or exclusively serves such leased space. 2. Industrial processes that occur within a covered building. BUILDING MANAGEMENT SYSTEM. A computer-based system that monitors and controls a building's mechanical and electrical equipment, such as HVAC, lighting, power, fire, and security systems, including, at a minimum, control of the heating equipment using interior temperature sensors. CITY BUILDING. A covered building that is owned by the city and for which the city regularly pays all or part of the annual energy bills. Exception: The term "city building" shall not include: 1. Any building that participates in the tenant interim lease apartment purchase program. 2. Any building that participates in a program administered by the department of housing preservation and development. 3. Any building managed by the New York city health and hospitals corporation. 4. Any senior college in the City University of New York system. 5. Any cultural institution that is in the Cultural Institutions Group as determined by the department of cultural affairs. COOPERATIVE CORPORATION. A corporation governed by the requirements of the state cooperative corporation law or general business law that, among other things, grants persons the right to reside in a cooperative apartment, that right existing by such person's ownership of certificates of stock, proprietary lease, or other evidence of ownership of an interest in such entity. COVERED BUILDING. As it appears in the records of the department of finance: (i) a building that exceeds 50,000 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). Exception: The term "covered building" shall not include real property classified as class one pursuant to subdivision one of section 1802 of the real property tax law of the state of New York. CURRENT FACILITY REQUIREMENTS. The owner's current operational needs and requirements for a building, including temperature and humidity set points, operating hours, filtration, and any integrated requirements such as controls, warranty review, and service contract review. ENERGY AUDIT OR AUDIT. A systematic process of identifying and developing modifications and improvements of the base building systems, including but not limited to alterations of such systems and the installation of new equipment, insulation or other generally recognized energy efficiency technologies to optimize energy performance of the building and achieve energy savings, provided that such process shall not be less stringent than the Level II Energy Survey and Engineering Analysis of the 2004 edition of Procedures for Commercial Building Energy Audits published by the American Society of Heating, Refrigerating and Air-conditioning Engineers Inc. (ASHRAE). ENERGY AUDITOR. An approved agency authorized by the department to perform energy audits and to certify audit reports required by this article. Until such time as there is a national standard establishing qualifications for persons performing energy audits and such standard has been adopted by the department, an energy auditor shall be a registered design professional with such other certification or qualification as the department deems to be appropriate. After the establishment of such a national standard, the department may adopt the qualifications of the national standard with such modifications as the department deems to be appropriate. ENERGY EFFICIENCY REPORT. The report required to be filed pursuant to section 28-308.4. ENERGY MANAGEMENT SYSTEM. A system incorporating interior temperature sensors and a central processing unit and controls, which are used to monitor and control gas, steam and oil usage, as is applicable, based on the need for heating. FINANCIAL HARDSHIP (OF A BUILDING). A building shall be considered to be subject to financial hardship if the building: 1. Had arrears of property taxes or water or wastewater charges that resulted in the property's inclusion, within two years prior to the due date of an energy efficiency report, on the department of finance's annual New York city tax lien sale list; 2. Is exempt from real property taxes pursuant to sections 420-a, 420-b, 446 or 462 of the New York state real property tax law and applicable local law and the owner had negative revenue less expenses during the two tax years prior to the due date of an energy efficiency report as certified to the department by a certified public accountant; 3. Had outstanding balances under the department of housing preservation and development's emergency repair program that resulted in the property's inclusion, within two years prior to the due date of an energy efficiency report, on the department of finance's annual New York city tax lien sale list; or 4. Has an active or effective commitment letter from a governmental agency that provides for the financing of the rehabilitation, within a period of five years or less, of such building by such government agency for the purposes of affordable housing for low or moderate income families. OWNER. The owner of record of a covered building, except that in the case of a net lease of an entire building for a term of 49 years or more, inclusive of renewal options, the term owner shall refer to the net lessee and in the case of a covered building held in cooperative or condominium form of ownership, the term owner shall refer to the board of managers in the case of a condominium and the board of directors in the case of a cooperative apartment corporation. RETRO-COMMISSIONING. A systematic process for optimizing the energy efficiency of existing base building systems through the identification and correction of deficiencies in such systems, including but not limited to repairs of defects, cleaning, adjustments of valves, sensors, controls or programmed settings, and/or changes in operational practices. RETRO-COMMISSIONING AGENT. An individual, who shall not be a certified refrigerating system operating engineer or a licensed high-pressure boiler operating engineer on the staff of the building being retro-commissioned, authorized by the department to certify retro-commissioning reports required by this article. Until such time as there is a national standard establishing qualifications for persons who perform retro-commissioning and such standard has been adopted by the department, a retro-commissioning agent shall be a registered design professional, a certified refrigerating system operating engineer, or a licensed high-pressure boiler operating engineer, with such other qualification or certification as determined by the department. After the establishment of such a national standard, the department may adopt the qualifications of the national standard with such modifications as the department deems to be appropriate. SIMPLE BUILDING. A covered building with neither a central chilled water system nor a central cooling system that covers more than 10% of the building's gross area. SIMPLE PAYBACK. The number of years for the projected annual energy savings to equal the amount invested in the energy conservation measure, as determined by dividing the investment by the annual energy savings. SPACE. An area within a building enclosed by floor to ceiling walls, partitions, windows and doors. SYSTEM OR SUBSYSTEM. Shall have the same definition as set forth in section 202 of the New York city energy conservation code. (Am. L.L. 2018/106, 5/26/2018, eff. 11/22/2018; Am. L.L. 2021/126, 11/7/2021, eff. 11/7/2022; Am. L.L. 2023/077, 6/11/2023, eff. 6/11/2023) Editor's note: For related unconsolidated provisions, see Appendix A at L.L. 2009/087, L.L. 2021/126, and L.L. 2023/077.

NYC Admin. Code § 28-308.2 Energy audits required.

§ 28-308.2 Energy audits required. The owner shall ensure that an energy audit is performed on the base building systems of a covered building prior to filing an energy efficiency report as required by this article. Except as otherwise provided in section 28-308.7, an energy audit shall be performed by or under the supervision of an energy auditor and shall be performed in accordance with rules promulgated by the department. The audit process shall cover the base building systems and shall identify at a minimum: 1. All reasonable measures, including capital improvements, that would, if implemented, reduce energy use and/or the cost of operating the building; 2. For each measure, the associated annual energy savings, the cost to implement, and the simple payback, calculated by a method determined by the department; 3. The building's benchmarking output consistent with the United States Environmental Protection Administration (EPA) Portfolio Manager tool or as otherwise established by the department; 4. A break-down of energy usage by system and predicted energy savings by system after implementation of the proposed measures; and 5. A general assessment of how the major energy consuming equipment and systems used within tenant spaces impact the energy consumption of the base building systems based on a representative sample of spaces. Exceptions: 1. No energy audit is required if the building complies with one of the following as certified by a registered design professional: 1.1. The covered building has received an EPA Energy Star label for at least two of the three years preceding the filing of the building's energy efficiency report. 1.2. There is no EPA Energy Star rating for the building type and a registered design professional submits documentation, as specified in the rules of the department, that the building's energy performance is 25 or more points better than the performance of an average building of its type over a two-year period within the three-year period prior to the filing of an energy efficiency report consistent with the methodology of the Leadership in Energy and Environmental Design (LEED) 2009 rating system for Existing Buildings published by the United States Green Building Council (USGBC) or other rating system or methodology for existing buildings, as determined by the department. 1.3. The covered building has received certification under the LEED 2009 rating system for Existing Buildings published by the USGBC or other rating system for existing buildings, as determined by the department, within four years prior to the filing of the building's energy efficiency report. 2. An energy audit shall not be required for the first energy efficiency report of a simple building that is in compliance with six out of seven of the following items as certified by a registered design professional: 2.1. Individual heating controls. (i) Each dwelling unit in the building has one or more thermostatic controls controlling all the heating units within the dwelling unit and any heated space not within a dwelling unit has one or more thermostatic controls controlling all the heating units within the space, or (ii) the building has a central heating system controlled by an energy management system or a building management system that incorporates temperature sensors located in at least 10 percent of the dwelling units and 10 percent of the heated spaces, except that the total number of sensors required within the building shall not be less than 10 nor more than 30. 2.2. Common area and exterior lighting. Common area (lighting outside of tenant spaces) and exterior lighting, at a minimum, are in compliance with the provisions of the New York city energy conservation code as in effect for new systems installed on or after July 1, 2010. 2.3. Low flow faucets and shower heads. All faucets and showerheads within the building, at a minimum, meet the standards of table 604.4 of the New York city plumbing code as in effect for new systems installed on or after July 1, 2010. 2.4. Pipe insulation. All exposed pipes that are used to convey heat or hot water are insulated, at a minimum, in accordance with the standards of the New York city energy conservation code as in effect for new systems installed on or after July 1, 2010. 2.5. Domestic hot water. All domestic hot water tanks that do not have built-in insulation are insulated with a minimum insulation value of R-8. 2.6. Washing machines. All common area clothes washing machines are front loading. 2.7. Cool roof. The roof complies with section 1504.8 of the New York city building code as in effect for new buildings constructed on or after July 1, 2010. (Am. L.L. 2021/126, 11/7/2021, eff. 11/7/2022) Editor's note: For related unconsolidated provisions, see Appendix A at L.L. 2009/087 and L.L. 2021/126.

NYC Admin. Code § 28-308.2.1 Contents of audit report.

§ 28-308.2.1 Contents of audit report. The energy auditor shall prepare and certify a report of the energy audit. Except as otherwise provided in section 28-308.7, the audit report shall include such information relating to the audit as shall be specified in the rules of the department, including but not limited to (i) the date that the audit was completed, and (ii) the information specified in section 28-308.2. Editor's note: For related unconsolidated provisions, see Appendix A at L.L. 2009/087.

NYC Admin. Code § 28-308.2.1.1 Compliance with landmarks laws.

§ 28-308.2.1.1 Compliance with landmarks laws. The cost estimates for covered buildings that are regulated by any city, state or federal law regulating landmarks and historic buildings shall include all additional costs necessary for the proposed work to comply with such law. Editor's note: For related unconsolidated provisions, see Appendix A at L.L. 2009/087.

NYC Admin. Code § 28-308.2.2 Timing of energy audit.

§ 28-308.2.2 Timing of energy audit. Except as otherwise provided in section 28-308.7, the energy audit shall be completed no earlier than four years prior to the date on which a covered building's energy efficiency report is filed with the department pursuant to this article. Editor's note: For related unconsolidated provisions, see Appendix A at L.L. 2009/087.

NYC Admin. Code § 28-308.3 Retro-commissioning required.

§ 28-308.3 Retro-commissioning required. The owner shall ensure that retro-commissioning is performed on the base building systems of a covered building prior to filing an energy efficiency report as required by this article. Except as otherwise provided in section 28-308.7, retro-commissioning shall be performed by or under the supervision of a retro-commissioning agent in accordance with rules promulgated by the department. Such rules, at a minimum, shall ensure that sufficient analysis, corrections and testing have been done so that the base building systems meet the following criteria demonstrating efficient operation: 1. Operating protocols, calibration, and sequencing: 1.1. HVAC temperature and humidity set points and setbacks are appropriate and operating schedules reflect major space occupancy patterns and the current facility requirements. 1.2. HVAC sensors are properly calibrated. 1.3. HVAC controls are functioning and control sequences are appropriate for the current facility requirements. 1.4. Loads are distributed equally across equipment when appropriate (i.e. fans, boilers, pumps, etc. that run in parallel). 1.5. Ventilation rates are appropriate for the current facility requirements. 1.6. System automatic reset functions are functioning appropriately, if applicable. 1.7. Adjustments have been made to compensate for oversized or undersized equipment so that it is functioning as efficiently as possible. 1.8. Simultaneous heating and cooling does not occur unless intended. 1.9. HVAC system economizer controls are properly functioning, if applicable. 1.10. The HVAC distribution systems, both air and water side, are balanced. 1.11. Light levels are appropriate to the task. 1.12. Lighting sensors and controls are functioning properly according to occupancy, schedule, and/or available daylight, where applicable. 1.13. Domestic hot water systems have been checked to ensure proper temperature settings. 1.14. Water pumps are functioning as designed. 1.15. System water leaks have been identified and repaired. 2. Cleaning and repair: 2.1. HVAC equipment (vents, ducts, coils, valves, soot bin, etc.) is clean. 2.2. Filters are clean and protocols are in place to replace, as appropriate. 2.3. Light fixtures are clean. 2.4. Motors, fans, and pumps, including components such as belts, pulleys, and bearings, are in good operating condition. 2.5. Steam traps have been replaced as required to maintain efficient operation, if applicable. 2.6. Manual overrides on existing equipment have been remediated. 2.7. Boilers have been tuned for optimal efficiency, if applicable. 2.8. Exposed hot and chilled water and steam pipes three (3) inches or greater in diameter with associated control valves are insulated in accordance with the standards of the New York city energy conservation code as in effect for new systems installed on or after July 1, 2010. 2.9. In all easily accessible locations, sealants and weather stripping are installed where appropriate and are in good condition. 3. Training and documentation: 3.1. Permits for all HVAC, electrical and plumbing equipment are in order. 3.2. Critical operations and maintenance staff have received appropriate training, which may include labor/management training, on all major equipment and systems and general energy conservation techniques. 3.3. Operational and maintenance record keeping procedures (log books, computer maintenance records, etc.) have been implemented. 3.4. The following documentation is on site and accessible to the operators: the operations and maintenance manuals, if such manuals are still available from the manufacturer, the maintenance contracts, and the most recent retro-commissioning report. Exception: No retro-commissioning is required if the covered building has received certification under the LEED 2009 rating system for Existing Buildings published by the USGBC or other rating system for existing buildings, as determined by the department, within two years prior to the filing of the building's energy efficiency report and earned the LEED point for Existing Building Commissioning investigation and analysis and the LEED point for Existing Building Commissioning implementation. (Am. L.L. 2021/126, 11/7/2021, eff. 11/7/2022) Editor's note: For related unconsolidated provisions, see Appendix A at L.L. 2009/087 and L.L. 2021/126.

NYC Admin. Code § 28-308.3.1 Contents of retro-commissioning report.

§ 28-308.3.1 Contents of retro-commissioning report. The retro-commissioning agent shall prepare and certify a retro-commissioning report. The retro-commissioning report shall include such information relating to the retro-commissioning as shall be set forth in the rules of the department including, at a minimum: 1. Project and team information: 1.1 Building address. 1.2 Experience and certification of person performing retro-commissioning and any staff involved in the project. 1.3 Name, affiliation, and contact information for persons performing retro-commissioning and members of the retro-commissioning team, owner of building, and facility manager of building. 2. Building information: 2.1. List of all HVAC, domestic hot water, electrical equipment, lighting, and conveyance equipment types in the base building systems. 2.2. Benchmarking output. 3. Testing protocol: 3.1. List of all equipment types tested. 3.2. For each equipment type tested, a list of the sample rates (percent of each type of equipment tested), the testing methodology, including any diagnostic equipment used, and the test results. 3.3. List of integrated system testing performed. 4. Master list of findings, including for each, the name of the retro-commissioning measure and its assigned number, a brief description of the measure, recommended corrections, the benefits attained, estimated annual savings (energy and cost), the estimated implementation cost, and the simple payback. 5. Deficiencies corrected: 5.1. List of repairs completed during investigation. 5.2. List of deficiencies corrected, including, for each deficiency, the date corrected, by whom the correction was made, the actual cost, and projected savings. Editor's note: For related unconsolidated provisions, see Appendix A at L.L. 2009/087.

NYC Admin. Code § 28-308.3.2 Timing of retro-commissioning.

§ 28-308.3.2 Timing of retro-commissioning. Except as otherwise provided in section 28-308.7, the retro-commissioning shall be completed no earlier than four years prior to the date on which a covered building's energy efficiency report is filed with the department pursuant to this article. Editor's note: For related unconsolidated provisions, see Appendix A at L.L. 2009/087.

NYC Admin. Code § 28-308.3.3 Documentation of retro-commissioning.

§ 28-308.3.3 Documentation of retro-commissioning. A copy of the latest up-to-date equipment manuals and the most recent retro-commissioning report shall be maintained at every covered building and shall be made available upon request for inspection by the department. Editor's note: For related unconsolidated provisions, see Appendix A at L.L. 2009/087.

NYC Admin. Code § 28-308.4 Energy efficiency report required.

§ 28-308.4 Energy efficiency report required. Except as otherwise provided in section 28-308.7, the owner of a covered building shall file an energy efficiency report for such building between January first and December thirty-first of the calendar year in which such report is due pursuant to this section and between January first and December thirty-first of every tenth calendar year thereafter. Exceptions: 1. An owner may apply for an extension of time to file an energy efficiency report if despite such owner's good faith efforts, to be documented in such application, the owner is unable to complete the required energy audit and retro-commissioning prior to the scheduled due date for such report. The commissioner may grant no more than two such extensions of no more than one year each. Extensions granted pursuant to this provision shall not extend the scheduled due dates for subsequent energy efficiency reports. 2. An owner may receive annual extensions of time to file an energy efficiency report based on financial hardship of the building. Editor's note: For related unconsolidated provisions, see Appendix A at L.L. 2009/087.

NYC Admin. Code § 28-308.4.1 Due dates.

§ 28-308.4.1 Due dates. The first energy efficiency reports for covered buildings and for new buildings shall be due in the calendar year with a final digit that is the same as the last digit of the building's tax block number, as illustrated in the following chart: Last digit of taxblock number 0 1 2 3 4 5 6 7 8 9 Year first EERis due 2020 2021 2022 2023 2024 2025 2026 2027 2028 2029 Owners of covered buildings (i) that are less than 10 years old at the commencement of their first assigned calendar year or (ii) that have undergone substantial rehabilitation, as certified by a registered design professional, within the 10 year period prior to any calendar year in which an energy efficiency report is due, such that at the commencement of such calendar year all of the base building systems of such building are in compliance with the New York city energy conservation code as in effect for new buildings constructed on and after July 1, 2010, or as in effect on the date of such substantial rehabilitation, whichever is later, may defer submitting an energy efficiency report for such building until the tenth calendar year after such assigned calendar year. Exceptions: 1. A city building constructed after December 28, 2009 shall be added to such schedule within 10 years after the issuance of the first certificate of occupancy for such building. Copies of energy efficiency reports submitted to the department with respect to city buildings that are not submitted by the department of citywide administrative services shall also be submitted to the department of citywide administrative services. 2. A cooperative corporation that owns multiple covered buildings located on different tax block numbers, that is required to file an energy efficiency report for more than one covered building in different calendar years, may consolidate all such energy efficiency reports into one report, disaggregated by covered building, due no later than the year in which the last energy efficiency report would be due, which shall be accepted by the department in satisfaction of the requirements of this section for each covered building included in such consolidated report. (Am. L.L. 2018/106, 5/26/2018, eff. 11/22/2018; Am. L.L. 2021/126, 11/7/2021, eff. 11/7/2022) Editor's note: For related unconsolidated provisions, see Appendix A at L.L. 2009/087 and L.L. 2021/126.

NYC Admin. Code § 28-308.4.2 Combined audit and retro-commissioning.

§ 28-308.4.2 Combined audit and retro-commissioning. Nothing in this article shall prevent an owner from performing the audit and the retro-commissioning in a combined process, provided that all the requirements of sections 28-308.2 and 28-308.3 are met. Editor's note: For related unconsolidated provisions, see Appendix A at L.L. 2009/087.

NYC Admin. Code § 28-308.5 Content of energy efficiency report.

§ 28-308.5 Content of energy efficiency report. Except as otherwise provided in section 28-308.7, the energy efficiency report shall include, in a format prescribed by the department, (i) the energy audit report or documentation substantiating that an exception as set forth in section 28-308.2 applies to such building, and (ii) the retro-commissioning report or documentation substantiating that an exception as set forth in section 28-308.3 applies to such building. Editor's note: For related unconsolidated provisions, see Appendix A at L.L. 2009/087.

NYC Admin. Code § 28-308.6 Notification by the department of finance.

§ 28-308.6 Notification by the department of finance. The department of finance shall notify the owner of the requirements of this article three years prior to the calendar year in which the covered building's energy efficiency report is due and in the calendar year prior to the calendar year in which such report is due. Editor's note: For related unconsolidated provisions, see Appendix A at L.L. 2009/087.

NYC Admin. Code § 28-308.7 Rules.

§ 28-308.7 Rules. The department shall promulgate such rules as are necessary to carry out the provisions of this article in a timely manner, which may include separate fees for filing and review of applications and reports filed pursuant to this article. (Am. L.L. 2021/126, 11/7/2021, eff. 11/7/2022) Editor's note: For related unconsolidated provisions, see Appendix A at L.L. 2009/087 and L.L. 2021/126.

Source: City of New York, Charter, Administrative Code and Rules (American Legal Publishing XML export, codelibrary.amlegal.com)URL: https://codelibrary.amlegal.com/codes/newyorkcity/latest/NYCadmin/0-0-0-158265Fetched: 10/24/2026