S T A T E   O F   N E W   Y O R K
________________________________________________________________________

                                  8883

                          I N  A S S E M B L Y

                            February 27, 2014
                               ___________

Introduced by M. of A. CAHILL -- read once and referred to the Committee
  on Energy

AN  ACT authorizing certain municipalities to participate in a community
  choice energy aggregation program by a single municipality or  through
  an  inter-municipal agreement with two or more municipalities in order
  to coordinate efforts to procure electric and/or gas  supply  services
  on behalf of participating residents, businesses and municipal custom-
  ers within municipal jurisdictional boundaries

  THE  PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND ASSEM-
BLY, DO ENACT AS FOLLOWS:

  Section 1. Definitions. The following terms, when used  in  this  act,
shall have the following meanings:
  1. "Customer" shall mean a customer of record who received residential
or  non-residential  electric and/or gas supply services from a distrib-
ution utility at the time of a local resolution by his  or  her  munici-
pality to participate in a municipally administered community-wide ener-
gy  aggregation  program,  provided  that  such customer did not receive
electric and gas supply services from an energy services company  and/or
a publicly-owned utility.
  2.  "Distribution  utility" or "distribution utilities" shall mean any
investor-owned utility in the state of New York.
  3. "Participating customer" shall mean a customer who  receives  elec-
tric  and/or  gas  supply  services  through  a municipally administered
community-wide energy aggregation  program,  including  residential  and
commercial, and municipal customers.
  4.    "Community  choice aggregation," "program," or "community energy
aggregation program" shall mean an inter-municipal agreement or a munic-
ipal resolution for the purpose of coordinating or initiating efforts by
a municipality or by community choice aggregators to  request  bids  for
and  potentially  select an ESCO or ESCOs to provide electric and/or gas
supply services to participating residential, commercial and  government
customers.
  5.  "Municipal  governing  board"  is single municipal board for local
programs limited  within  municipal  jurisdictional  boundaries,  or  an

 EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                      [ ] is old law to be omitted.
              

                                                           LBD14127-01-4

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inter-municipal  agreement  entered  into  by  resolution of two or more
municipal boards aggregating load on a regional basis.
  6.  "Energy services company" or "ESCO" shall have the same meaning as
such term is used in subdivision 5 of section 44 of the  public  service
law.
  7.  "Municipality"  or  "municipalities"  shall  mean  a city, town or
village located in the state of New York.
  8. "Community choice aggregator" or "energy aggregator" shall  mean  a
municipality authorized pursuant to a local resolution to participate in
an inter-municipal agreement establishing a municipal energy aggregation
program  to offer energy services to residential, commercial and munici-
pal customers located  within  the  energy  aggregator's  jurisdictional
boundaries.
  9.  "Program  administrator"  shall mean a community choice aggregator
that is designated pursuant to a local municipal governing board  resol-
ution  or  an  inter-municipal agreement, or an employee or a contractor
designated by a community choice aggregator to fulfill the  responsibil-
ities of: (i) requesting and compiling historical usage data of distrib-
ution  utility  customers  as required under this act, (ii) submitting a
request for bids for energy supply services  from  ESCOs  authorized  to
supply electric and/or gas in New York state, and (iii) carrying out the
administration   of   the  contract  and  implementation  of  aggregated
services.
  10. "Department: shall mean the New York state  department  of  public
service.
  S  2.  Community  choice  aggregation programs. 1. A municipality may,
after adopting a resolution approved by  a  majority  of  its  governing
board,  participate in a community choice aggregation program through an
inter-municipal agreement with one or more municipalities  in  order  to
coordinate  efforts,  or  through  its  own community choice aggregation
program to procure electric and/or gas supply  services,  and  municipal
programs  to  develop  energy  efficiency and renewable energy installa-
tions, gas efficiency and renewable heating technologies  on  behalf  of
its participating customers.
  Such  community choice aggregation program must provide for the desig-
nation of a program administrator to  facilitate  the  operations  of  a
community  choice  aggregation program, including but not limited to the
receipt of customer historical usage data information from  distribution
utilities  pursuant  to section three of this act and any communications
necessary with potential ESCOs that would provide  electric  and/or  gas
supply  services for such program, and otherwise entering into contracts
with other energy efficiency and renewable energy developers,  including
gas efficiency and renewable heating technologies, provider power and/or
capacity to the community choice aggregation program.
  2.  A  community choice aggregator shall be responsible for responding
to inquiries  regarding  the  particular  community  choice  aggregation
program  in  which it is a participant. Such community choice aggregator
shall provide contact information, including but not limited to a  mail-
ing address, telephone number, e-mail address and fax number at which it
may be contacted in all notices to participating customers.
  3. In establishing a contract for electric and/or gas services with an
ESCO,  a program administrator shall comply with article 7 of the public
officers law.
  S 3. Establishment of community choice  aggregation  program.  1.  The
program  administrator  designated pursuant to an inter-municipal agree-
ment or municipal resolution establishing a  community-wide  aggregation

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program shall provide a copy of such agreement to the distribution util-
ities  and  submit  a  formal request for usage information provided for
under subdivision two of this section.
  2.  In  order  to  augment  energy  efficiency  and  renewable  energy
programs, and within 60 days of the establishment of a community  choice
aggregation  program  or of an inter-municipal agreement establishing an
aggregation program  and  the  formal  request,  distribution  utilities
shall,  at  a reasonable cost as determined by the commission within 120
days of the effective date of this act, provide to the program  adminis-
trator  the  following utility information regarding customers receiving
gas and/or electric supply services from such distribution utilities who
are eligible to receive service from the community choice aggregator:
  (a) aggregate monthly usage (kWh) by rate schedule: energy consumption
(kWh) for the most recent 60 months of completed  information  for  each
customer class for a given period of time for each municipality included
in the data request;
  (b)  customer-specific information from the current billing periods as
well as prior 60 months consisting of the following billing information:
meter number, service  agreement  number,  name  on  agreement,  service
address  with zip code, mailing address with zip code, telephone number,
monthly kWh usage, monthly  maximum  demand  where  available,  Baseline
Zone,  low  income  residential  participation  (Home  Energy Assistance
Program or HEAP), End Use Code (Heat Source), Service  Voltage,  Medical
Baseline,  Meter  Cycle, Bill Cycle, Level Payment Plan and other plans,
HP Load and Number of Units, monthly  rate  schedule  for  all  accounts
within the community choice aggregator's territory;
  (c)  system  wide  residential  and non-residential load shapes by New
York Load Zones and New York Control  Area  designations  for  the  most
recent  five  years  for  which  the  distribution utility has completed
information;
  (d) standard system average load profiles by rate class also  referred
to  as  Dynamic  Load  Profiles  &  Static  Load  Profiles posted to the
distribution utility's website;
  (e) quarterly or monthly  aggregated  participation  data  for  energy
efficiency  programs  already  tracked in New York State Energy Research
and Development Authority reports, as available;
  (f) aggregate monthly usage (kWh) by zip code within a city code;
  (g) customer-specific information  consisting  of:  service  agreement
number,  monthly  interval meter data where available, and rate schedule
for all accounts within the community choice aggregator's territory;
  (h) number of service agreements in each rate schedule within a munic-
ipal energy aggregation's territory or proposed territory;
  (i) mapping of customer rate schedule to rate class;
  (j)  estimated  annual  generation  revenues   by   community   choice
aggregator's territory;
  (k) estimation of peak coincident and non-coincident demands;
  (l)  data  fitting  community  choice aggregator's annual usage to New
York Control Area load shapes; estimation of peak  coincident  and  non-
coincident demands;
  (m)  total annual kWh loads of bundled customers and customers already
receiving ESCO service, firstly on a monthly basis  and  secondly  on  a
rate schedule basis within the community choice aggregator's territory;
  (n)  aggregated  residential,  small  commercial, large commercial and
government annual kWh usage for the past three years in a format by tier
for each rate schedule, and for Time of Use (TOU) rates or other  meter-

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specific  rates,  providing  further  separation  by summer/winter peak,
partial peak, and off peak periods and summer/winter period;
  (o)  annual  proportional  share of system benefit charge energy effi-
ciency funds for a community choice aggregator's proposed territory;
  (p) system benefit charge customer payment by city code;
  (q) all electricity usage data at the most granular interval  recorded
by the distribution utility;
  (r) all monthly unbundled rate components and charges for each custom-
er;
  (s) natural gas consumption and billing data for all customers located
within  the  territorial  boundaries of the community choice aggregator,
similar in extent and specification to what is being  requested  on  the
electricity side (i.e. customer data, consumption data at the most gran-
ular interval available, monthly bills within unbundled charges, and all
data necessary to calculate those charges);
  (t) clarification and datasets used to associate gas meters with elec-
tric meters at the building level and customer level;
  (u)  all  energy efficiency program data for all customers (by account
number,  service  ID  number,  street  address,  etc),  listing  account
contacts  and  all  recorded activity and information, including but not
limited to on-site or online audits, benchmarking,  retro-commissioning,
and  energy  use  analyses and efficiency recommendations, and paperwork
filed by customers or contractors, and financing information such as  on
bill  financing  amounts  and repayment status, as available, as well as
any associated data sets such as building  information  on  tenant/owner
occupancy,  square  footage  and  year built, as well as rebate code and
measure tables, as available;
  (v) demand response program participation  and  all  relevant  metrics
recorded for these programs;
  (w)  the type of interconnect agreement and all relevant metrics asso-
ciated with  customers  that  have  already  interconnected  distributed
generation to the distribution utility's distribution grid;
  (x) distribution grid data that could impact the siting of distributed
generation  or demand-side assets, in a GIS format including shape-files
and any associated datasets;
  (y) the number of customers, by class including  indication  of  those
that  are  currently provided electric and/or gas supply service from an
ESCO, that are not served by a publicly-owned utility;
  (z) the aggregate gas and electric usage  of  eligible  customers,  by
class  served, for the 12-month period preceding the request; the system
peak hour or hours that determines capacity buying requirements, and  to
the  degree  that  it  is  available the aggregated load factor by class
served for the 12-month period preceding the request; and
  (aa) to the degree that it is available, reasonable efforts to provide
more detailed historic information relating to energy  usage  character-
istics  of  customers,  including but not limited to information by rate
class on meter type, the number of smart meters deployed, kWh usage  and
peak demand information classification, meter reading cycle information,
load  profile  designating information, the number of customers enrolled
in budget billing plans, loss factor information, net-metering  informa-
tion  and  any  other  information deemed useful by the community choice
aggregation program administrator to successfully solicit bids  for  and
implement the aggregation program.
  S  4.  Selection  of  ESCO  providers. 1. Upon receipt of utility bulk
information required under section three of this act, the program admin-
istrator is authorized to advertise for the request of bids  from  ESCOs

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for  the  provision  of  services  for  a  community  choice aggregation
program. Any request for bids shall specify that a contract  for  aggre-
gation program services must:
  (a) include price benchmarks, which shall provide for:
  (i) monthly per kWh rates for electric supply services for each appli-
cable  class  of  customers that are before the 12-month average monthly
price supply services provided by distribution utilities or  lower  than
the  distribution  utility's  rate  at the time of a request for bids as
provided for in this section, except insofar  as  customers  voluntarily
pay  higher  rates to pay for and receive ownership benefits from energy
efficiency retrofits and/or renewable distributed generation;
  (ii) monthly per Btu rates for gas supply services for each applicable
class of customers that are below the 12-month average monthly price  of
supply  services  provided  by  distribution utilities or lower than the
distribution utility's rate at  the  time  of  a  request  for  bids  as
provided  for  in  this section, except insofar as customers voluntarily
pay higher rates to pay for and receive ownership benefits  from  energy
efficiency retrofits and/or renewable distributed generation;
  (b)  provide  that  the  ESCO  will  not levy any form of cancellation
charge to participating customers who, after receiving  electric  and/or
gas  supply  services  from  the  ESCO,  choose  to  receive such supply
services from their respective distribution utility;
  (c) provide that the community choice aggregator municipal  board  may
levy  a  cancellation  charge to participating customers only insofar as
such charges cover obligations to repay investment in  renewable  energy
and energy efficiency installations serving participating customers;
  (d)  provide  for  a  website  for participating customers to view the
monthly rates charged for electric and/or gas  supply  and  any  related
renewable  energy  and/or  energy efficiency services and products being
offered by the community choice aggregation program administrator; and
  (e) provide that any costs associated with preparation for  or  imple-
mentation  of  this program or contract shall be reflected in the bench-
mark per kWh and per Btu bid price.
  2. (a) After a review of bids submitted for  energy  supply  services,
community  choice  aggregator are authorized to select the ESCO or ESCOs
that will offer the best service, price, environmental,  greenhouse  gas
reductions,  and  local employment and local business benefits and other
factors considered, provided that the per kWh supply rate for  electric-
ity  and  per  Btu  rate  for  gas  supply services at the initiation of
service is lower than the distribution utility's  average  monthly  rate
for  supply  services  for  the prior 12-month period, or lower than the
distribution utility's rate at  the  time  of  a  request  for  bids  as
provided  for  in  this section and meet the requirements of subdivision
one of this section, provided that community choice aggregator,  may  at
their  discretion,  reject  all  bids or offers and re-advertise for new
bids or offers in a manner provided by this act.
  (b) In making a  selection,  community  choice  aggregator  shall  (i)
select  one ESCO for the provision of electric supply services; and (ii)
select one ESCO for the  provision  of  gas  supply  services,  provided
however  that  the  community  choice  aggregators may select an ESCO to
provide both electric and gas  supply  service,  provided  further  that
community  choice  aggregators  may  not  select  any ESCO that has been
deemed ineligible to provide energy services by the department.
  (c) in making a selection, community choice aggregators  may  contract
with  any  number of contractors to design, build, operate, and/or main-

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tain renewable energy facilities and  energy  efficiency  measures  that
provide power or capacity to the community choice aggregation program.
  3.  After selection of an ESCO or ESCOs, the community choice aggrega-
tors are authorized to set rates and to enter into a contract for supply
services by a local law of the  local  governing  board.  Such  contract
shall include:
  (a)  provisions  prohibiting the ESCO or ESCOs from denying service to
any customer receiving service from his or her distribution  utility  at
the commencement of such contract;
  (b) monthly per kWh rates for electric supply services for each appli-
cable  class  of  customers  that  is  below the average monthly rate of
supply services provided  by  distribution  utilities  in  the  previous
12-month  period  or  lower  than the distribution utility's rate at the
time of a request for  bids  as  provided  for  in  this  section,  with
approval  of  any changes requiring a resolution of the community choice
aggregator's municipal board;
  (c) monthly per Btu rates for gas supply services for each  applicable
class  of  customers  that  is  below the average monthly rate of supply
services provided by distribution utilities  in  the  previous  12-month
period  or  lower  than the distribution utility's rate at the time of a
request for bids as provided for in this section with  approval  of  any
changes  requiring  a  resolution  of  the community choice aggregator's
municipal board;
  (d) provisions requiring the ESCO or ESCOs to provide electric  and/or
gas  supply  rates lower than the distribution utility's electric and/or
gas supply rates pursuant to paragraphs (b) and (c) of this  subdivision
for  the  duration  of  the  contract, provided that a violation of this
provision shall subject such ESCO to refund participating  customers  at
the  time  of  termination of a contract pursuant to section six of this
act, subject to a determination by resolution of  the  community  choice
aggregator's municipal board;
  (e)  provisions  prohibiting a community choice aggregator from opting
out of the contract during the term of such contract;
  (f) provisions for the community choice aggregation municipal board to
decide whether to terminate a contract for services if an ESCO fails  to
meet  the  price  benchmarks  pursuant  to this act with the ESCO having
exclusive responsibility for all re-entry fees charged to a  participat-
ing  customer  by  distribution  utilities  for the resumption of supply
services;
  (g) provisions indemnifying  community  choice  aggregators  from  all
liabilities, damages and costs associated with the non-performance of an
ESCO operating under a contract for services;
  (h) a requirement that the ESCO provide a performance bond if required
by the community choice aggregator; and
  (i)  any  other requirement that the community choice aggregators deem
necessary for the adequate and reliable supply of  electric  and/or  gas
supply services to participating customers.
  S 5. Notice of community choice aggregation contract required. 1. Upon
the  completion of the contract for services provided for under subdivi-
sion three of section four of this act, the program administrator  shall
obtain from distribution utilities at a reasonable cost as determined by
the  commission  within  60 days of the effective date of this act their
lists of customers that may be affected by such contract and provide the
community choice aggregators with such information, including the trans-
fer of all data on each meter  for  all  eligible  accounts  within  the
community  choice  aggregator  jurisdictional  boundaries for the past 5

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years. The community choice aggregator shall then notify such  customers
as  to  the  provisions  of  such contract, including but not limited to
price benchmarks.
  2.  Distribution  utilities  must  make all reasonable preparations to
release customers who do not choose to opt-out pursuant  to  subdivision
three  of  this  section  from  receiving  electric  and/or  gas  supply
services, provided that all customers shall continue to receive delivery
services from such utilities.
  3. Upon completion of a contract provided for under subdivision  three
of  section  four  of this act, community choice aggregators must mail a
notice to each eligible customer not currently receiving supply services
from a publicly-owned utility, which shall include:
  (a) that the customer's municipal board has chosen to participate in a
community choice aggregation contract;
  (b) for customers not currently served by an ESCO, that unless  he/she
elects  to opt-out within 60 days of the postmarked notice, such opt-out
customers will become a participating customer and will receive electric
and/or gas  supply  services  through  a  community  choice  aggregation
contract;
  (c)  for  customers  not  currently  served  by  an ESCO, instructions
detailing how a customer may submit an opt-out response,  provided  that
such  procedures  shall permit the customer to opt-out at no cost within
sixty days by returning a reply mail form to the program  administrator,
as determined by the community choice aggregation municipal board;
  (d)  for customers not currently served by an ESCO, that each customer
who does not elect to opt-out within the prescribed period may elect  to
opt-out of such contract at any time, but may be subject to exit fees by
the community choice aggregator municipal board;
  (e)  for customers already served by an ESCO, that each customer wish-
ing to switch to service with the community choice aggregator may do  so
by  opting-in  to the program within sixty days of the postmarked notice
to become a participating  customer  and  receive  electric  and/or  gas
supply services through the community choice aggregation contract;
  (f)  for customers already receiving ESCO service that elect to opt-in
to the program, instructions detailing how  a  customer  may  submit  an
opt-in  response, by returning a reply mail form to the program adminis-
trator, as determined by  the  community  choice  aggregation  municipal
board; and
  (g)  that  in  the  case  of a participating customer the distribution
utility is no longer  responsible  for  supply  rates  charged  to  such
customer  and  that all complaints about supply service under the aggre-
gation contract shall be the responsibility of the program administrator
and ESCO  or  ESCOs,  according  to  the  community  choice  aggregation
contract.
  4.  Immediately  following  the  60-day opt-out period provided for in
paragraph (b) of subdivision three of this section, a  community  choice
aggregator  shall  provide  the program administrator with the following
information:
  (a) the number of customers that received electric and/or  gas  supply
services  from such distribution utility who are participating customers
by rate class; and
  (b) the name,  address,  and  account  number  of  each  participating
customer.
  5.  The  program  administrator,  upon receipt of information required
under subdivision four of this section, shall  submit  such  information
and  the information provided for under subdivision two of section three

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of this act to the ESCO or  ESCOs.  Such  ESCOs  shall  commence  supply
services to participating customers.
  S  6.  Public  service  commission  review.  1. Within 365 days of the
commencement of gas and/or electric supply services under an aggregation
contract, the commission, after consultation with the  department  shall
commence  an  audit  to ensure such ESCO or ESCOs selected have achieved
benchmarks established pursuant to paragraph (b) of subdivision  one  of
section four of this act.
  2.  (a)  If the commission determines that the ESCO or ESCOs providing
gas and/or electric gas supply  services  has  failed  to  achieve  such
benchmarks  as  established in subdivision three of section four of this
act, the contract for services established pursuant to subdivision three
of section four of this act shall be subject to  termination  by  resol-
ution of the community choice aggregator's governing board.
  (b)  Within  30  days of the termination of a contract for services by
the community choice aggregator's municipal board, the ESCO shall  issue
payment  to each participating customer for any supply rates above those
specified in the contract, including the cost of any applicable re-entry
fees charged to a customer for resumption of supply services.
  (c) The commission  shall  ensure  that  all  customers  eligible  for
resumption  of  electric and/or gas supply service from their respective
distribution utility receive such  services  regardless  of  the  actual
timing  of the payment provided for under paragraph (b) of this subdivi-
sion.
  3. An ESCO shall not levy any charge to a community choice  aggregator
to cover expenses related to the termination of a contract.
  S  7.  Report.  Within  30  months  of  the  establishment of a supply
services contract for services or upon the termination of such contract,
the commission shall submit a report to  the  executive,  the  temporary
president  of the senate, the speaker of the assembly, the chairs of the
senate energy and telecommunications committee and the  assembly  energy
committee  detailing  the  performance of any aggregation contract. Such
report shall include the following information:
  1. the number of participating customers served;
  2. the ability of the ESCO or  ESCOs  selected  under  an  aggregation
program to provide adequate supply services;
  3. the actual supply rates charged under a contract for services;
  4. the amount, if any, of participating customers whose residential or
non-residential service was disconnected; and
  5.  any  other  information the public service commission deems neces-
sary.
  S 8. Energy services company bill of rights applicable to  participat-
ing  customers.  For purposes of this act the term "customer" as defined
in paragraph (c) of subdivision 1 of section 349-d of the general  busi-
ness law, shall include participating customers.
  S 9. This act shall take effect immediately.