A: The amount of city funding and the attributes of work scope are the main criteria to consider with regard to whether a project or project phase is subject to one or several LL86 requirements. To aid in determining which LL86 requirements, if any, apply to a project, the following questions should be answered in the order presented below. Note that all cost thresholds should be adjusted for inflation.
When the anticipated City contribution to the project, i.e. dollars that will be released from the city treasury to pay for any capitally eligible project work, is less than $10 million, then at least 50% of the total project cost must be funded with such dollars in order for the project to be subject to LL86. Projects receiving $10 million or more from the treasury are subject to the law, regardless of the ratio of total project cost to the City’s contribution. Note that the dollars released from the the city treasury may be either capital funds or expense funds. Further note that, for the purposes of determining the total project cost, all capitally eligible work described in the approved Certificates to Proceed and CBX Certificates should be considered, including all supporting documentation. If these threshold funding criteria are met, proceed to Question 2. If not, the project is not subject to any LL86 requirements.
There are two "grandfather clauses" in LL86: the first relates to when the first payment was made and the second relates to when design approval was given. Regarding the first payment clause: if a payment was released from the city treasury prior to January 1, 2007 to pay a non-City entity for capitally eligible work in accordance with an approved Certificate to Proceed or CBX Certificate, then the project is not subject to any LL86 requirements. Regarding the design approval clause: if the City granted design approval before January 1, 2007 - where the date of design approval is defined as the date when the last of all CP's and CBX Certificates necessary to spend the anticipated city contribution are issued by OMB - then the project is not subject to any LL86 requirements. If such first payment was or will be made after January 1, 2007 and such design approval was or will be granted after this date, proceed to Question 3.
Work scope that occurs in a space with a primary occupancy other than residential, industrial, or outdoor assembly could be subject to one or more of four basic categories of requirements: LEED rating level requirements, LEED energy cost reduction requirements, system specific energy cost reduction requirements, and potable water use reduction requirements as described below.
A: A project consists of all the capitally eligible work described in all the Certificates to Proceed and CBX Certificates issued by OMB to authorize the expenditure of the anticipated City contribution for capitally eligible work, including all supporting documents. It is important to note that the definition of project is not limited to capitally eligible work paid with city funds, but includes any capitally eligible work mentioned in the above referenced documentation. What constitutes "capitally eligible" is defined in detail in the latest version of the NYC Comptroller’s Directive 10 and includes items such as the labor costs, material costs, and professional fees for site preparation, utility infrastructure, landscaping, land acquisition, furniture, fittings and equipment, as well as work related to design and construction.
A: Since one structure on the project may be connected with others in various ways, an agency may occasionally need guidance regarding which structures or portions of structures in a project constitute separate buildings. In these cases, the agency should define the boundary of the building in a manner that is consistent with the PW-1 form issued by the NYC Department of Buildings (DOB) when the project is filed. Should a determination be needed prior to issuance of the PW-1, the agency should request a pre-consideration by the DOB Borough Commissioner of the borough in which the project is located.
A: Since the building portions of a project or project phase affected by project work could house more than one occupancy type, an agency may occasionally need guidance regarding which occupancy group applies to which part of the project. In the case of a new building, the dominant occupancy of such building governs. However, in cases where there is a fit-out in a new building with a primary occupancy that is not covered, only the primary occupancy of the fit-out should be considered. In the case of a project or project phase that involves an addition or substantial reconstruction, the dominant occupancy of the area where such work occurs should govern. Finally, in the case of a project or project phase that involves boiler, lighting, HVAC comfort control, or domestic plumbing work that is not subject to the LEED® rating level requirement, the primary occupancy of the entire building in which the work occurs should govern. In all cases, the agency should define the primary occupancy of the building portions affected by project work in a manner that is consistent with the PW-1 form approved by the NYC Department of Buildings (DOB) when the project is filed. Should a determination be needed prior to DOB approval of the PW-1 form, the agency should request a pre-consideration by the DOB Borough Commissioner of the borough in which the project is located.
A: Yes. If a city agency (or a non-city entity holding a project funding agreement with a city agency) acts as leasor in a lease agreement that provides for project space to be built out by a lessee, then the work in this space should be considered when determining which LL86 requirements should apply. Conversely, if a city agency (or a non-city entity holding a project funding agreement with a city agency) acts as lessee in a lease agreement that provides for the build out of project space by the leasor, the work in the leased space should also be considered when determining which LL86 requirements apply to a project.
A: Regardless of whether city funding is utilized for all or only a portion of the project, the entire project should be considered for the purposes of determining which LL86 requirements may apply. However, in the case of projects where the division of the project into phases has been approved in writing by MOEC, each such phase should be considered separately for all purposes other than to establish the law's threshold criteria, e.g. the dollar value of the City's contribution, the date of first payment from the city treasury, and the date of design approval.
A: The city contribution amount that should be used for the purposes of determining whether LL86 applies to the project should be derived from all Certificates to Proceed and CBX Certificates approved by the NYC Office of Management and Budget (OMB) for that project, including all supporting documentation. In the rare case where the total anticipated amount of the City's contribution does not exceed one or more thresholds in the law when the first CP or CBX is issued but later unexpectedly receives additional city funding that puts the project over a threshold in the law, thereby increasing the level or number of applicable requirements and necessitating a significant redesign or even reconstruction, the project team should apply to MOEC for an exemption.
A: Since the occupancy classification definitions and designations in the 2008 code differ from those in the 1968 code, it may appear at first as if a building portion of a project is not covered by LL86. However, in these cases, the occupancy classification in the 1968 code that corresponds to the dominant or primary occupancy group per the 2008 code should be used for the purposes of determining if a project is covered by LL86. This is consistent with Section 102.7 of Article 102 in Chapter 1 of the 2008 Building Code which reads: “28-102.7 References in other laws. References to provisions of the administrative code in other laws shall be deemed to refer to equivalent provisions of the 1968 building code or the New York City construction codes as the context in which such references may appear may require.” Agencies should contact the NYC Department of Buildings (DOB) with any questions they have in regard to which occupancy classifications in the 2008 code correspond to those in the 1968 code cited in the law.
A: Landmark structures are subject to all LL86 provisions. The NYS Energy Code is referenced in the LL86 Rules only for the purposes of designating the methodology to be used to calculate energy cost reduction requirements in the law, not for the purposes of determining whether LL86 provisions apply to a project. Should circumstances unique to a particular landmark building project mean that compliance with one or more LL86 requirements is not feasible, the design team should submit an exemption application to MOEC.
A: When a city agency manages construction of projects that use a LEED® rating system (as opposed to the NYC Green Schools 2007 rating system) to satisfy the LL86 LEED rating level requirement, a sufficient number of these projects are required to apply to the USGBC for certification as necessary to account for at least 50% of the dollars released from the city treasury each fiscal year to all the LL86 LEED projects using a LEED rating system on which that same agency is managing construction. In cases where a city agency manages a funding agreement with a non-city entity that is managing construction of a LL86 LEED® project that uses a LEED® rating system, such agency may choose to add a clause to the funding agreement requiring that the project team apply for USGBC third party certification as a means of monitoring consultant progress and enforcing the law’s requirements, even though LL86 does not require any such funding agreement projects to apply to the USGBC.
A: To qualify as reconstruction, work scope in an existing building must involve general construction work (described in Divisions 2-14 of MasterFormat® 2011) excluding minor alterations and ordinary repairs (defined in the NYC building code). If an agency requires a determination as to whether a certain type of work constitutes minor alterations and ordinary repairs, they should request a pre-consideration by the DOB Borough Commissioner of the borough in which the project is located.
A: The term "project" means all capitally eligible work, as capitally eligible is defined in the latest version of Directive 10 issued by the NYC Comptroller, that is described in the Certificates to Proceed and CBX Certificates issued by OMB, including all supporting documentation, regardless of which portion of the work is funded with city funds. The entire project work scope should be considered for the purposes of determining if funding and "grandfather clause" criteria are met, e.g. the amount of the city contribution, the date of first payment from the city treasury, and the date of design approval. The entire project work scope should also be considered when reviewing the scope of work criteria, i.e. primary occupancy, type of work, and construction cost, unless the project has been divided into phases. If the project is approved by MOEC as having more than one phase, each phase should be considered separately when reviewing the scope of work criteria, but the project as a whole should still be considered when reviewing the funding and "grandfather clause" criteria. More information on funding and "grandfather clause" criteria as well as scope of work criteria is provided in the first FAQ above.
A: A project should be considered as having more than one phase if:
Other circumstances, as determined by MOEC, may warrant that the project be considered in separate phases for certain purposes. However, in all cases, the definition of project phases must be reviewed and approved by MOEC.
A: Yes. Even though the USGBC does not accept an application to certify the LEED rating level that the managing agency must achieve for a project, the project must still earn the points and prerequisites necessary to achieve at least the minimum rating level required. If achievement of the necessary points or prerequisites is not feasible or if the project must apply to the USGBC in order for the managing agency to meet the LL86 requirement to apply for USGBC certification of enough projects to account for 50% of the city funds spent each fiscal year on all LL86 LEED projects where construction is managed by that agency, the project should apply to MOEC for a partial exemption.