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

                                  1285

                       2015-2016 Regular Sessions

                          I N  A S S E M B L Y

                             January 9, 2015
                               ___________

Introduced by M. of A. CAHILL -- Multi-Sponsored by -- M. of A. BARRETT,
  CRESPO,  LUPARDO,  MOYA,  SKARTADOS  --  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

 EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                      [ ] is old law to be omitted.
                                                           LBD06340-01-5
              

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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
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.

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  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
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;

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  (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-
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-

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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
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

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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-
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

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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
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

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  (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
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.