Senate Bill sb1164

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    Florida Senate - 2007                                  SB 1164

    By Senator Wise





    5-1107-07                                           See HB 271

  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 state

11         agencies, municipalities, or political

12         subdivisions; amending s. 287.064, F.S.,

13         relating to consolidated financing of

14         deferred-payment purchases, to conform;

15         providing an effective date.

16  

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

18  

19         Section 1.  Section 489.145, Florida Statutes, is

20  amended to read:

21         489.145  Guaranteed energy performance savings

22  contracting.--

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

24  "Guaranteed Energy Performance Savings Contracting Act."

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

26  investment in energy, water, and wastewater efficiency or

27  conservation measures in agency facilities can reduce the

28  amount of energy and water consumed and wastewater to be

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

30  policy of this state to encourage each agency agencies to

31  invest in energy, water, and wastewater efficiency or

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    Florida Senate - 2007                                  SB 1164
    5-1107-07                                           See HB 271




 1  conservation measures that provide such reductions reduce

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

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

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

 5  economically feasible, build or renovate existing agency

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

 7  consumption and wastewater production and maximize energy,

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

 9  this state to encourage each agency agencies to reinvest any

10  energy savings resulting from energy, water, and wastewater

11  efficiency or conservation measures in additional energy,

12  water, and wastewater efficiency or conservation measures

13  efforts.

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

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

16  political subdivision.

17         (b)  "Energy, water, or wastewater efficiency or

18  conservation measure" means a training program, facility

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

20  or in retrofitting or adding to existing facilities or

21  infrastructure that new construction, including an addition to

22  an existing facility, which reduces energy, water, wastewater,

23  or operating costs and includes, but is not limited to:

24         1.  Insulation of the facility structure and systems

25  within the facility.

26         2.  Storm windows and doors, caulking or

27  weatherstripping, multiglazed windows and doors,

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

29  and door systems, additional glazing, reductions in glass

30  area, and other window and door system modifications that

31  reduce energy consumption.

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    Florida Senate - 2007                                  SB 1164
    5-1107-07                                           See HB 271




 1         3.  Automatic energy control systems.

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

 3  modifications or replacements.

 4         5.  Replacement or modifications of lighting fixtures

 5  to increase the energy efficiency of the lighting system,

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

 7  local building code.

 8         6.  Energy recovery systems.

 9         7.  Cogeneration systems that produce steam or forms of

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

11  within a facility or complex of facilities.

12         8.  Energy conservation measures that provide long-term

13  operating cost reductions or significantly reduce Btu

14  consumed.

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

16  or wind systems.

17         10.  Devices that reduce water consumption or

18  wastewater sewer charges.

19         11.  Equipment upgrades that improve the accuracy of

20  billable revenue-generating systems.

21         12.  Automated electronic or remotely controlled

22  systems or measures that reduce direct personnel costs.

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

24  or conservation measures as may provide measurable operating

25  cost reductions or billable revenue increases.

26         14.11.  Energy storage systems, such as fuel cells and

27  thermal storage.

28         15.12.  Energy-generating generating technologies, such

29  as microturbines.

30         16.  Cool roof coating.

31  

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    Florida Senate - 2007                                  SB 1164
    5-1107-07                                           See HB 271




 1         17.13.  Any other repair, replacement, or upgrade of

 2  existing equipment.

 3         (c)  "Energy, water, or wastewater cost savings" means

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

 5  consumption, or wastewater production and stipulated

 6  improvement in the operation and maintenance created from the

 7  implementation of one or more energy, water, or wastewater

 8  efficiency or conservation measures when compared with an

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

10  water consumption, or wastewater production and stipulated

11  operation and maintenance.

12         (d)  "Guaranteed energy performance savings contract"

13  means a contract for the evaluation, recommendation, and

14  implementation of energy, water, or wastewater efficiency or

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

16         1.  The design and installation of equipment to

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

18  operation and maintenance of such measures.

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

20  or exceed total annual contract payments made by the agency

21  for the contract.

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

23  life of the contract.

24         (e)  "Guaranteed energy performance savings contractor"

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

26  chapter 481, or this chapter, and is experienced in the

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

28  water, or wastewater efficiency or conservation measures

29  through energy performance contracts.

30         (4)  PROCEDURES.--

31  

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    Florida Senate - 2007                                  SB 1164
    5-1107-07                                           See HB 271




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

 2  performance savings contract with a guaranteed energy

 3  performance savings contractor to significantly reduce energy,

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

 5  through one or more energy, water, or wastewater efficiency or

 6  conservation measures.

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

 8  or wastewater efficiency and conservation measures, the agency

 9  must obtain from a guaranteed energy performance savings

10  contractor a report that summarizes the costs associated with

11  the energy conservation measures and provides an estimate of

12  the amount of the associated energy cost savings or

13  operational improvements. The agency and the guaranteed energy

14  performance savings contractor may enter into a separate

15  agreement to pay for costs associated with the preparation and

16  delivery of the report; however, payment to the contractor

17  shall be contingent upon the report's projection of energy

18  cost savings being equal to or greater than the total

19  projected costs of the design and installation of the report's

20  energy conservation or efficiency measures.

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

22  performance savings contract with a guaranteed energy

23  performance savings contractor if the agency finds that the

24  amount the agency would spend on the energy conservation or

25  efficiency measures will not likely exceed the amount of the

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

27  date of installation, based on the life cycle cost

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

29  the report were followed and if the qualified provider or

30  providers give a written guarantee that such the energy cost

31  savings will meet or exceed the costs of the system. The

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    Florida Senate - 2007                                  SB 1164
    5-1107-07                                           See HB 271




 1  contract may provide for installment payments for a period not

 2  to exceed 20 years.

 3         (d)  A guaranteed energy performance savings contractor

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

 5  fewer than three firms are qualified to perform the required

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

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

 8  s. 287.057 do not apply.

 9         (e)  Before entering into a guaranteed energy

10  performance savings contract, an agency must provide published

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

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

13  and the contract's purpose.

14         (f)  A guaranteed energy performance savings contract

15  may provide for financing, including tax-exempt tax exempt

16  financing, by a third party. The contract for third-party

17  third party financing may be separate from the energy

18  performance savings contract. A separate contract for

19  third-party third party financing must include a provision

20  that the third-party third party financier must not be granted

21  rights or privileges that exceed the rights and privileges

22  available to the guaranteed energy performance savings

23  contractor.

24         (g)  In determining the amount the agency will finance

25  to acquire the efficiency or energy conservation measures, the

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

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

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

29  energy performance savings contract. However, in calculating

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

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

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    Florida Senate - 2007                                  SB 1164
    5-1107-07                                           See HB 271




 1         (5)  CONTRACT PROVISIONS.--

 2         (a)  A guaranteed energy performance savings contract

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

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

 5  or corporate guarantee by the guaranteed energy performance

 6  savings contractor that annual associated energy cost savings

 7  will meet or exceed the amortized cost of the efficiency or

 8  energy conservation measures.

 9         (b)  The guaranteed energy performance savings contract

10  must provide that all payments, except obligations on

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

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

13  complete installation and acceptance by the agency, and that

14  the annual savings are guaranteed to the extent necessary to

15  make annual payments to satisfy the guaranteed energy

16  performance savings contract.

17         (c)  The guaranteed energy performance savings contract

18  must require that the guaranteed energy performance savings

19  contractor to whom the contract is awarded provide a

20  100-percent public construction bond to the agency for its

21  faithful performance, as required by s. 255.05.

22         (d)  The guaranteed energy performance savings contract

23  may contain a provision allocating to the parties to the

24  contract any annual associated energy cost savings that exceed

25  the amount of the associated energy cost savings guaranteed in

26  the contract.

27         (e)  The guaranteed energy performance savings contract

28  shall require the guaranteed energy performance savings

29  contractor to provide to the agency an annual reconciliation

30  of the guaranteed associated energy cost savings. If the

31  reconciliation reveals a shortfall in such annual energy cost

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    Florida Senate - 2007                                  SB 1164
    5-1107-07                                           See HB 271




 1  savings, the guaranteed energy performance savings contractor

 2  is liable for such shortfall. If the reconciliation reveals an

 3  excess in such annual energy cost savings, the excess savings

 4  may be allocated under paragraph (d) but may not be used to

 5  cover potential energy cost savings shortages in subsequent

 6  contract years.

 7         (f)  The guaranteed energy performance savings contract

 8  must provide for payments of not less than one-twentieth of

 9  the price to be paid within 2 years from the date of the

10  complete installation and acceptance by the agency, and the

11  remaining costs to be paid at least quarterly, not to exceed a

12  20-year term, based on life cycle cost calculations.

13         (g)  The guaranteed energy performance savings contract

14  may extend beyond the fiscal year in which it becomes

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

16  end of each fiscal year and may be automatically renewed

17  annually for up to 20 years, subject to the agency making

18  sufficient annual appropriations based upon continued realized

19  energy, water, or wastewater savings.

20         (h)  The guaranteed energy performance savings contract

21  must stipulate that it does not constitute a debt, liability,

22  or obligation of the state.

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

24  Department of Management Services, with the assistance of the

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

26  resources, provide technical assistance to state agencies

27  contracting for energy, water, or wastewater efficiency or

28  conservation measures and engage in other activities

29  considered appropriate by the department for promoting and

30  facilitating guaranteed energy performance contracting by

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

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    Florida Senate - 2007                                  SB 1164
    5-1107-07                                           See HB 271




 1  with the assistance of the Department of Management Services,

 2  may, within available resources, develop model contractual and

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

 4  into a guaranteed energy performance savings contract, any

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

 6  combination of such contracts, a state agency shall submit

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

 8  Financial Officer for review and approval.

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

10  Statutes, is amended to read:

11         287.064  Consolidated financing of deferred-payment

12  purchases.--

13         (10)  Costs incurred pursuant to a guaranteed energy

14  performance savings contract, including the cost of energy,

15  water, or wastewater efficiency and conservation measures,

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

17  master equipment financing agreement; however, the costs of

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

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

20  the master equipment financing agreement under this subsection

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

22         Section 3.  This act shall take effect July 1, 2007.

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