§ 5-13 — Charges

§ 5-13 Charges.

(a) Eligible charges. (1) Eligible charges are charges for energy services purchased by an eligible energy user, an eligible owner, or a qualified eligible energy user from a utility or from a vendor at a rate or rates established pursuant to an order or rule of the PSC or FERC, other than charges for the purchase of the commodity of natural gas or electricity, and shall include applicable rate reductions for economic development or similar purposes, and all taxes payable thereon and shall exclude charges in accordance with paragraph (2) of this subdivision (a). (2) Eligible charges shall not include the following charges: (i) any special charges on such bills relating to energy services, including, but not limited to, collection charges, late payment charges, excess distribution charges, or any additional fee charged by a vendor to an eligible energy user for energy services, as authorized by 66 RCNY § 5-11(f)(ii); (ii) charges for energy services that are resold; and (iii) charges for energy services used in the production of electricity or for heating the premises. (b) Eligible public utility service charges. (1) Eligible public utility service charges are actual charges for energy services provided by a public utility service, including charges for public utility service administrative services, and shall include all taxes payable thereon, and shall exclude charges in accordance with paragraph (2) of this subdivision (b). (2) Eligible public utility service charges shall not include the following charges: (i) any special charges on such bills relating to energy services, including, but not limited to, collection charges, late payment charges, excess distribution charges, or any additional fee charged by a vendor to an eligible energy user or qualified eligible energy user for energy services, as authorized by 66 RCNY § 5-11(f)(ii); (ii) charges for such energy services that are resold; and (iii) charges for energy services used in the production of electricity or for heating the premises. (c) Eligible charges for common areas in specially eligible premises. (1) With respect to an eligible owner that owns, operates or manages specially eligible premises or targeted eligible premises in which at least fifty percent (50%) of the square footage of such specially eligible premises is occupied by recipients, eligible charges or eligible public utility service charges shall include the following: (i) eligible charges or eligible public utility charges for any common areas within the specially eligible premises, including but not limited to, the elevators, roof, parking garages, lobby, and vestibules; and (ii) eligible charges or eligible public utility charges for the office space that is reasonably required for use by the eligible owner for the operation or management of the specially eligible premises, as determined by the commissioner, if applicable. (d) Eligible on-site cogenerator charges. (1) Eligible on-site cogenerator charges are charges for energy services purchased by a category II on-site cogenerator from a utility related to the delivery of natural gas to such co-generator at rates established pursuant to an order or rule of the PSC or the FERC, and shall include applicable rate reductions for economic development or similar purposes, and all taxes payable thereon and shall exclude charges in accordance with paragraph (2) of this subdivision. (2) Eligible on-site cogenerator charges shall not include the following charges: (i) any special charges on such bills relating to energy services, including, but not limited to, collection charges, late payment charges, excess distribution charges, or any additional fee charged by a vendor to an eligible energy user for energy services, as authorized by 66 RCNY § 5-11(f)(ii); (ii) charges for energy services that are resold; (iii) charges for energy services used for heating the premises; and (iv) any charges that qualify as eligible charges and for which special rebates are provided under other provisions of ECSP. (e) Determination of eligible charges, eligible public utility service charges, and eligible on-site cogenerator charges by the commissioner. (1) The commissioner shall base his or her determination of which charges are eligible charges, eligible public utility charges, or eligible on-site cogenerator charges based upon: (i) representations and/or certifications made by the applicant in its application to ECSP; (ii) a review of the applicant's prior energy services bills; (iii) a site visit; and/or (iv) any other relevant factors relating to use and occupancy that is deemed by the commissioner to be relevant in making such a determination. (2) An eligible energy user, qualified eligible energy user, or category II on-site co-generator has the burden of demonstrating to the commissioner that charges for energy services are eligible charges, eligible public utility service charges, or eligible on-site cogenerator charges, respectively. If a determination of eligible charges, eligible public utility service charges, or eligible on-site cogenerator charges cannot be ascertained by the commissioner without a survey or the eligible energy user, qualified eligible energy user, or category II on-site cogenerator is not satisfied with the commissioner's determination of such charges, such user may request that the commissioner cause a survey to be conducted by a licensed professional engineer satisfactory to DSBS at such user's expense, of the applicant's usage of energy services. Upon completion of the survey, the professional who prepares such survey shall submit the report, together with a certification as to the amount of eligible charges or eligible public utility service charges to the commissioner for his or her review. (3) The commissioner, after reviewing all relevant documentation submitted by the applicant, shall, in his or her sole discretion, determine those charges that constitute the eligible energy user's, qualified eligible energy user's, or category II on-site cogenerator's eligible charges, eligible public utility service charges, or eligible on-site cogenerator charges to which a special rebate may be applied. If such user disagrees with the commissioner's findings, such user may request an opportunity to be heard in accordance with 66 RCNY §§ 5-45, 5-46 and 5-47.