S T A T E   O F   N E W   Y O R K
 ________________________________________________________________________
 
                                    136
 
                        2019-2020 Regular Sessions
 
                           I N  A S S E M B L Y
 
                                (PREFILED)
 
                              January 9, 2019
                                ___________
 
 Introduced by M. of A. CAHILL -- Multi-Sponsored by -- M. of A. BARRETT,
   CRESPO, LUPARDO -- 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.
                                                            LBD01939-01-9

 A. 136                              2
 
 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.
   § 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.

 A. 136                              3
 
   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.
   §  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;

 A. 136                              4
 
   (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-

 A. 136                              5
 
 tion and any other information deemed useful  by  the  community  choice
 aggregation  program  administrator to successfully solicit bids for and
 implement the aggregation program.
   §  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

 A. 136                              6
 
 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.
   § 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

 A. 136                              7
 
 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

 A. 136                              8
 
   (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.
   §  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.
   §  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.
   § 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.
   § 9. This act shall take effect immediately.