Senate Bill sb0278c2

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    Florida Senate - 2006                     CS for CS for SB 278

    By the Committees on General Government Appropriations;
    Regulated Industries; and Senators Wise, Haridopolos and King




    601-2387-06

  1                      A bill to be entitled

  2         An act relating to contracting for efficiency

  3         or conservation measures by state agencies;

  4         amending s. 489.145, F.S.; including water and

  5         wastewater efficiency and conservation in the

  6         measures encouraged by the Legislature;

  7         revising definitions; providing for inclusion

  8         of water and wastewater efficiency and

  9         conservation measures in guaranteed performance

10         savings contracts entered into by a state

11         agency, municipality, or political subdivision;

12         providing additional requirements for

13         contracts; amending s. 287.064, F.S., relating

14         to consolidated financing of deferred-payment

15         purchases, to conform; providing an effective

16         date.

17  

18  Be It Enacted by the Legislature of the State of Florida:

19  

20         Section 1.  Section 489.145, Florida Statutes, is

21  amended to read:

22         489.145  Guaranteed energy performance savings

23  contracting.--

24         (1)  SHORT TITLE.--This section may be cited as the

25  "Guaranteed Energy Performance Savings Contracting Act."

26         (2)  LEGISLATIVE FINDINGS.--The Legislature finds that

27  investment in energy, water, and wastewater efficiency or

28  conservation measures in agency facilities can reduce the

29  amount of energy and water consumed and wastewater to be

30  treated and produce immediate and long-term savings. It is the

31  policy of this state to encourage each agency agencies to

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    Florida Senate - 2006                     CS for CS for SB 278
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 1  invest in energy, water, and wastewater efficiency or

 2  conservation measures that provide such reductions reduce

 3  energy consumption, produce a cost savings for the agency,

 4  and, for energy measures, improve the quality of indoor air in

 5  public facilities and to operate, maintain, and, when

 6  economically feasible, build or renovate existing agency

 7  facilities in such a manner as to minimize energy and water

 8  consumption or wastewater production and maximize energy,

 9  water, and wastewater savings. It is further the policy of

10  this state to encourage agencies to reinvest any energy

11  savings resulting from energy, water, and wastewater

12  efficiency or conservation measures in additional energy,

13  water, and wastewater efficiency or conservation measures

14  efforts.

15         (3)  DEFINITIONS.--As used in this section, the term:

16         (a)  "Agency" means the state, a municipality, or a

17  political subdivision.

18         (b)  "Energy, water, and wastewater efficiency or

19  conservation measure" means a training program, facility

20  alteration, or equipment purchase to be used in new facilities

21  or in retrofitting or adding to existing facilities or

22  infrastructure new construction, including an addition to an

23  existing facility, which reduces energy, water, wastewater, or

24  operating costs and produces tangible and measurable

25  efficiency and performance savings that have conservation

26  results and includes, but is not limited to:

27         1.  Insulation of the facility structure and systems

28  within the facility.

29         2.  Storm windows and doors, caulking or

30  weatherstripping, multiglazed windows and doors,

31  heat-absorbing, or heat-reflective, glazed and coated window

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    Florida Senate - 2006                     CS for CS for SB 278
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 1  and door systems, additional glazing, reductions in glass

 2  area, and other window and door system modifications that

 3  reduce energy consumption.

 4         3.  Automatic energy control systems.

 5         4.  Heating, ventilating, or air-conditioning system

 6  modifications or replacements.

 7         5.  Replacement or modifications of lighting fixtures

 8  to increase the energy efficiency of the lighting system,

 9  which, at a minimum, must conform to the applicable state or

10  local building code.

11         6.  Energy recovery systems.

12         7.  Cogeneration systems that produce steam or forms of

13  energy such as heat, as well as electricity, for use primarily

14  within a facility or complex of facilities.

15         8.  Energy conservation measures that provide long-term

16  operating cost reductions or significantly reduce Btu

17  consumed.

18         9.  Renewable energy systems, such as solar, biomass,

19  or wind systems.

20         10.  Devices that reduce water consumption or

21  wastewater sewer charges.

22         11.  Equipment upgrades that improve the accuracy of

23  billable revenue generating systems.

24         12.  Automated electronic or remotely controlled

25  systems or measures that reduce direct personnel costs.

26         13.  Such other energy, water, or wastewater efficiency

27  or conservation measures as may provide measurable operating

28  cost reductions or billable revenue increases.

29         14.11.  Energy storage systems, such as fuel cells and

30  thermal storage.

31  

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    Florida Senate - 2006                     CS for CS for SB 278
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 1         15.12.  Energy generating technologies, such as

 2  microturbines.

 3         16.13.  Any other repair, replacement, or upgrade of

 4  existing equipment.

 5         17.  Cool roof coating.

 6         (c)  "Energy, water, and wastewater cost savings" means

 7  a measured reduction in the cost of fuel, energy or water

 8  consumption, or wastewater production, and stipulated

 9  improvement in the operation and maintenance created from the

10  implementation of one or more energy, water, and wastewater

11  efficiency or conservation measures when compared with an

12  established baseline for the previous cost of fuel, energy, or

13  water consumption, or wastewater production, and stipulated

14  operation and maintenance.

15         (d)  "Guaranteed energy performance savings contract"

16  means a contract for the evaluation, recommendation, and

17  implementation of energy, water, and wastewater efficiency or

18  conservation measures, which, at a minimum, shall include:

19         1.  The design and installation of equipment to

20  implement one or more of such measures and, if applicable,

21  operation and maintenance of such measures. Such measures must

22  be continued through the life of any financing such that

23  subsequent replacement costs are included in the total cost of

24  all measures.

25         2.  The amount of any actual annual savings that meet

26  or exceed total annual contract payments made by the agency

27  for the contract.

28         3.  The finance charges incurred by the agency over the

29  life of the contract.

30         (e)  "Guaranteed energy performance savings contractor"

31  means a person or business that is licensed under chapter 471,

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    Florida Senate - 2006                     CS for CS for SB 278
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 1  chapter 481, or this chapter, and is experienced in the

 2  analysis, design, implementation, or installation of energy,

 3  water, or wastewater efficiency or conservation measures

 4  through energy performance contracts.

 5         (4)  PROCEDURES.--

 6         (a)  An agency may enter into a guaranteed energy

 7  performance savings contract with a guaranteed energy

 8  performance savings contractor to significantly reduce energy,

 9  water, or wastewater or operating costs of an agency facility

10  through one or more energy, water, and wastewater efficiency

11  or conservation measures.

12         (b)  Before design and installation of energy, water,

13  and wastewater efficiency and conservation measures, the

14  agency must obtain from a guaranteed energy performance

15  savings contractor a report that summarizes the costs

16  associated with the energy conservation measures and provides

17  an estimate of the amount of the associated energy cost

18  savings or operational improvements. The agency and the

19  guaranteed energy performance savings contractor may enter

20  into a separate agreement to pay for costs associated with the

21  preparation and delivery of the report; however, payment to

22  the contractor shall be contingent upon the report's

23  projection of energy cost savings being equal to or greater

24  than the total projected costs of the design and installation

25  of the report's energy conservation or efficiency measures.

26         (c)  The agency may enter into a guaranteed energy

27  performance savings contract with a guaranteed energy

28  performance savings contractor if the agency finds that the

29  amount the agency would spend on the energy conservation or

30  efficiency measures will not likely exceed the amount of the

31  associated energy cost savings for up to 20 years from the

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    Florida Senate - 2006                     CS for CS for SB 278
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 1  date of installation, based on the life cycle cost

 2  calculations provided in s. 255.255, if the recommendations in

 3  the report were followed and if the qualified provider or

 4  providers give a written guarantee that such the energy cost

 5  savings will meet or exceed the costs of the system. Such

 6  savings shall be based on the life cycle cost calculations

 7  provided in s. 255.255 and may not exceed the lesser of 20

 8  years from the date of installation or the useful life of the

 9  system. The contract may provide for installment payments for

10  a period not to exceed the lesser of 20 years or the useful

11  life of the system.

12         (d)  A guaranteed energy performance savings contractor

13  must be selected in compliance with s. 287.055; except that if

14  fewer than three firms are qualified to perform the required

15  services, the requirement for agency selection of three firms,

16  as provided in s. 287.055(4)(b), and the bid requirements of

17  s. 287.057 do not apply.

18         (e)  Before entering into a guaranteed energy

19  performance savings contract, an agency must provide published

20  notice of the meeting in which it proposes to award the

21  contract, the names of the parties to the proposed contract,

22  and the contract's purpose.

23         (f)  A guaranteed energy performance savings contract

24  may provide for financing, including tax exempt financing, by

25  a third party. The contract for third party financing may be

26  separate from the energy performance savings contract. A

27  separate contract for third party financing must include a

28  provision that the third party financier must not be granted

29  rights or privileges that exceed the rights and privileges

30  available to the guaranteed energy performance savings

31  contractor.

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    Florida Senate - 2006                     CS for CS for SB 278
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 1         (g)  In determining the amount the agency will finance

 2  to acquire the efficiency or energy conservation measures, the

 3  agency may reduce such amount by the application of any grant

 4  moneys, rebates, or capital funding available to the agency

 5  for the purpose of buying down the cost of the guaranteed

 6  energy performance savings contract. However, in calculating

 7  the life cycle cost as required in paragraph (c), the agency

 8  shall not apply any grants, rebates, or capital funding.

 9         (5)  CONTRACT PROVISIONS.--

10         (a)  A guaranteed energy performance savings contract

11  must include a written guarantee that may include, but is not

12  limited to the form of, a letter of credit, insurance policy,

13  or corporate guarantee by the guaranteed energy performance

14  savings contractor that annual associated energy cost savings

15  will meet or exceed the amortized cost of the efficiency and

16  energy conservation measures.

17         (b)  The guaranteed energy performance savings contract

18  must provide that all payments, except obligations on

19  termination of the contract before its expiration, may be made

20  over time, but not to exceed the lesser of 20 years from the

21  date of complete installation or the useful life of the

22  measure and acceptance by the agency, and that the annual

23  savings are guaranteed to the extent necessary to make annual

24  payments to satisfy the guaranteed energy performance savings

25  contract.

26         (c)  The guaranteed energy performance savings contract

27  must require that the guaranteed energy performance savings

28  contractor to whom the contract is awarded provide a

29  100-percent public construction bond to the agency for its

30  faithful performance, as required by s. 255.05.

31  

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    Florida Senate - 2006                     CS for CS for SB 278
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 1         (d)  The guaranteed energy performance savings contract

 2  may contain a provision allocating to the parties to the

 3  contract any annual energy cost savings that exceed the amount

 4  of the energy cost savings guaranteed in the contract.

 5         (d)(e)  The guaranteed energy performance savings

 6  contract shall require the guaranteed energy performance

 7  savings contractor to provide to the agency an annual

 8  reconciliation of the guaranteed associated energy cost

 9  savings. If the reconciliation reveals a shortfall in such

10  annual energy cost savings, the guaranteed energy performance

11  savings contractor is liable for such shortfall. If the

12  reconciliation reveals an excess in such annual energy cost

13  savings, the excess savings may be allocated under paragraph

14  (d) but may not be used to cover potential energy cost savings

15  shortages in subsequent contract years.

16         (e)(f)  The guaranteed energy performance savings

17  contract must provide for payments of not less than

18  one-twentieth of the price to be paid within 2 years from the

19  date of the complete installation and acceptance by the

20  agency, and the remaining costs to be paid at least quarterly,

21  not to exceed a 20-year term or the useful life of the

22  measure, based on life cycle cost calculations.

23         (f)(g)  The guaranteed energy performance savings

24  contract may extend beyond the fiscal year in which it becomes

25  effective; however, the term of any contract expires at the

26  end of each fiscal year and may be automatically renewed

27  annually for the lesser of up to 20 years or the useful life

28  of the measure, subject to the agency making sufficient annual

29  appropriations based upon continued realized energy, water, or

30  wastewater savings.

31  

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    Florida Senate - 2006                     CS for CS for SB 278
    601-2387-06




 1         (g)(h)  The guaranteed energy performance savings

 2  contract must stipulate that it does not constitute a debt,

 3  liability, or obligation of the state.

 4         (6)  PROGRAM ADMINISTRATION AND CONTRACT REVIEW.--The

 5  Department of Management Services, with the assistance of the

 6  Office of the Chief Financial Officer, may, within available

 7  resources, provide technical assistance to state agencies

 8  contracting for energy, water, and wastewater efficiency or

 9  conservation measures and engage in other activities

10  considered appropriate by the department for promoting and

11  facilitating guaranteed energy performance contracting by

12  state agencies. The Office of the Chief Financial Officer,

13  with the assistance of the Department of Management Services,

14  may, within available resources, develop model contractual and

15  related documents for use by state agencies. Prior to entering

16  into a guaranteed energy performance savings contract, any

17  contract or lease for third-party financing, or any

18  combination of such contracts, a state agency shall submit

19  such proposed contract or lease to the Office of the Chief

20  Financial Officer for review and approval. Any such contract

21  for a state agency must be supported from available recurring

22  funds appropriated to the agency in an appropriation category,

23  other than the expense appropriation category as defined in

24  chapter 216, that the Chief Financial Officer has determined

25  is appropriate or that the Legislature has designated for

26  payment of the obligation incurred under this section. Before

27  approval of any such contract, a state agency must include in

28  its legislative budget request the total cost of the equipment

29  and request transfer of available recurring budget authority

30  to the proper appropriation category, pursuant to s.

31  216.023(4)(a)5. for payment of the obligation incurred under

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    Florida Senate - 2006                     CS for CS for SB 278
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 1  this section. For fiscal year 2006-2007, a budget amendment

 2  transferring funds to the proper appropriation category must

 3  be approved for a state agency before approval of such

 4  contract.

 5         Section 2.  Subsection (10) of section 287.064, Florida

 6  Statutes, is amended to read:

 7         287.064  Consolidated financing of deferred-payment

 8  purchases.--

 9         (10)  Costs incurred pursuant to a guaranteed energy

10  performance savings contract, including the cost of energy,

11  water, and wastewater efficiency and conservation measures,

12  each as defined in s. 489.145, may be financed pursuant to a

13  master equipment financing agreement; however, the costs of

14  training, operation, and maintenance may not be financed. The

15  period of time for repayment of the funds drawn pursuant to

16  the master equipment financing agreement under this subsection

17  may exceed 5 years but may not exceed 10 years.

18         Section 3.  This act shall take effect July 1, 2006.

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    Florida Senate - 2006                     CS for CS for SB 278
    601-2387-06




 1          STATEMENT OF SUBSTANTIAL CHANGES CONTAINED IN
                       COMMITTEE SUBSTITUTE FOR
 2                          CS for SB 278

 3                                 

 4  Revises the definition of an energy, water, and wastewater
    efficiency or conservation measure.
 5  
    Requires that replacement costs of measures with a useful life
 6  less than the financing term be included through the life of
    the financing.
 7  
    Requires savings to be calculated based on the lesser of 20
 8  years from the date of installation or the useful life of the
    system or measure.
 9  
    Deletes from current law a contractual entitlement related to
10  shared savings.

11  Provides that guaranteed performance savings contracts may be
    financed for the lesser of 20 years or the useful life of the
12  system.

13  Requires that guaranteed performance savings contracts be
    supported from available recurring funds in the proper
14  appropriation category.

15  Requires a state agency to submit a legislative budget request
    for issues related to guaranteed performance contracts.
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