1-1 By: Brown S.B. No. 305
1-2 (In the Senate - Filed January 28, 1999; February 1, 1999,
1-3 read first time and referred to Committee on Natural Resources;
1-4 March 4, 1999, reported favorably by the following vote: Yeas 6,
1-5 Nays 0; March 4, 1999, sent to printer.)
1-6 A BILL TO BE ENTITLED
1-7 AN ACT
1-8 relating to contracts by school districts, institutions of higher
1-9 education, and state agencies for water conservation measures.
1-10 BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
1-11 SECTION 1. The heading to Section 44.901, Education Code, is
1-12 amended to read as follows:
1-13 Sec. 44.901. ENERGY OR WATER CONSERVATION MEASURES.
1-14 SECTION 2. Subsections (a) through (f), Section 44.901,
1-15 Education Code, are amended to read as follows:
1-16 (a) The board of trustees of a school district may enter
1-17 into a contract for energy or water conservation measures to reduce
1-18 energy or water consumption or operating costs of school facilities
1-19 in accordance with this section.
1-20 (b) A contract to which this section applies includes a
1-21 contract for the installation of:
1-22 (1) insulation of the building structures and systems
1-23 within the building;
1-24 (2) storm windows or doors, caulking or
1-25 weatherstripping, multiglazed windows or doors, heat absorbing or
1-26 heat reflective glazed and coated window or door systems, or other
1-27 window or door system modifications that reduce energy consumption;
1-28 (3) automatic energy control systems, including
1-29 computer software and technical data licenses;
1-30 (4) heating, ventilating, or air-conditioning system
1-31 modifications or replacements that reduce energy or water
1-32 consumption;
1-33 (5) lighting fixtures that increase energy efficiency;
1-34 (6) energy recovery systems;
1-35 (7) electric systems improvements; [or]
1-36 (8) water-conserving landscape irrigation equipment;
1-37 (9) water-saving plumbing fixtures, appliances, or
1-38 equipment;
1-39 (10) water reuse, rainwater harvesting, or other
1-40 alternative water source technologies for landscape irrigation,
1-41 toilet and urinal flushing, or other purposes;
1-42 (11) substitution of non-water-using fixtures,
1-43 appliances, equipment, or practices for water-using fixtures,
1-44 appliances, equipment, or practices, if feasible; or
1-45 (12) other energy or water conservation-related
1-46 improvements or equipment (including improvements or equipment
1-47 relating to renewable energy).
1-48 (c) All energy or water conservation measures must comply
1-49 with current local, state, and federal construction and
1-50 environmental codes and regulations. Notwithstanding anything to
1-51 the contrary in Subsection (b), a contract for energy or water
1-52 conservation measures shall not include improvements or equipment
1-53 that allow or cause water from any condensing, cooling, or
1-54 industrial process or any system of nonpotable usage over which the
1-55 public water supply system officials do not have sanitary
1-56 control[,] to be returned to the potable water supply.
1-57 (d) The person with whom the board contracts must be
1-58 experienced in the design, implementation, and installation of the
1-59 energy or water conservation measures addressed by the contract.
1-60 (e) Before entering into a contract for energy or water
1-61 conservation measures, the board shall require the provider of the
1-62 energy or water conservation measures to file with the board a
1-63 payment and performance bond relating to the installation of energy
1-64 or water conservation measures that is in an amount the board finds
2-1 reasonable and necessary to protect the interests of the school
2-2 district and that may also cover the value of the guaranteed
2-3 savings on the contract and is conditioned on the faithful
2-4 execution of the terms of the contract.
2-5 (f) A contract for energy or water conservation measures,
2-6 with respect to existing buildings or facilities, may be a
2-7 lease/purchase contract, with a term not to exceed 10 years, that
2-8 meets federal tax requirements for tax-free municipal leasing or
2-9 long-term financing. The contract shall contain provisions
2-10 pursuant to which the provider of the energy or water conservation
2-11 measures guarantees the amount of the savings to be realized by the
2-12 school district under the contract. If the term of a contract for
2-13 energy or water conservation measures exceeds one year, the school
2-14 district's contractual obligations in any one year during the term
2-15 of the contract may not exceed the total energy or water and
2-16 operating cost savings, including but not limited to electrical,
2-17 gas, water, or other utility cost savings and operating cost
2-18 savings resulting from automatic monitoring and control as
2-19 determined by the school district in this subsection, divided by
2-20 the number of years in the contract term.
2-21 SECTION 3. Section 51.927, Education Code, as amended by
2-22 Chapters 627 and 1142, Acts of the 75th Legislature, Regular
2-23 Session, 1997, is reenacted and amended to read as follows:
2-24 Sec. 51.927. ENERGY OR WATER CONSERVATION MEASURES.
2-25 (a) The governing board of an institution of higher education may
2-26 enter into a contract for energy or water conservation measures to
2-27 reduce energy or water consumption or operating costs of
2-28 institutional facilities in accordance with this section.
2-29 (b) A contract to which this section applies includes a
2-30 contract for the installation of:
2-31 (1) insulation of a building structure and systems
2-32 within a building;
2-33 (2) storm windows of doors, caulking or weather
2-34 stripping, multiglazed windows or doors, heat-absorbing or
2-35 heat-reflective glazed and coated window or door systems, or other
2-36 window or door system modifications that reduce energy consumption;
2-37 (3) automatic energy control systems, including
2-38 computer software and technical data licenses;
2-39 (4) heating, ventilating, or air conditioning system
2-40 modifications or replacements that reduce energy or water
2-41 consumption;
2-42 (5) lighting fixtures that increase energy efficiency;
2-43 (6) energy recovery systems;
2-44 (7) electric systems improvements; [or]
2-45 (8) water-conserving landscape irrigation equipment;
2-46 (9) water-saving plumbing fixtures, appliances, or
2-47 equipment;
2-48 (10) water reuse, rainwater harvesting, or other
2-49 alternative water source technologies for landscape irrigation,
2-50 toilet and urinal flushing, or other purposes;
2-51 (11) substitution of non-water-using fixtures,
2-52 appliances, equipment, or practices for water-using fixtures,
2-53 appliances, equipment, or practices, if feasible; or
2-54 (12) other energy or water conservation-related
2-55 improvements or equipment (including improvements or equipment
2-56 related to renewable energy).
2-57 (c) All energy or water conservation measures must comply
2-58 with current local, state, and federal construction and
2-59 environmental codes and regulations. Notwithstanding anything to
2-60 the contrary in Subsection (b), a contract for energy or water
2-61 conservation measures shall not include improvements or equipment
2-62 that allow or cause water from any condensing, cooling, or
2-63 industrial process or any system of nonpotable usage over which the
2-64 public water supply system officials do not have sanitary
2-65 control[,] to be returned to the potable water supply.
2-66 (d) The entity with whom the board contracts must be
2-67 experienced in the design, implementation, and installation of the
2-68 energy or water conservation measures addressed by the contract.
2-69 (e) Before entering into a contract for energy or water
3-1 conservation measures, the board shall require the provider of the
3-2 energy or water conservation measures to file with the board a
3-3 payment and performance bond that is in an amount the board finds
3-4 reasonable and necessary to protect the interests of the
3-5 institution and is conditioned on the faithful execution of the
3-6 terms of the contract.
3-7 (f) The board may enter into a contract for a period of more
3-8 than one year for energy or water conservation measures with an
3-9 entity if the board finds that the amount the institution would
3-10 spend on the energy or water conservation measures will not exceed
3-11 the amount to be saved in energy or water and operating costs over
3-12 10 years from the date of installation. If the term of a contract
3-13 for energy or water conservation measures exceeds one year, the
3-14 board's contractual obligation in any year during the term of the
3-15 contract beginning after the final date of installation may not
3-16 exceed the total energy or water and operating cost savings,
3-17 including but not limited to electrical, gas, water, or other
3-18 utility cost savings and operating cost savings resulting from
3-19 automatic monitoring and control, as determined by the board in
3-20 this subsection, divided by the number of years in the contract
3-21 term beginning after the final date of installation. The board
3-22 shall consider all costs of the energy or water conservation
3-23 measures, including costs of design, engineering, installation,
3-24 maintenance, repairs, and debt service.
3-25 (g) A contract for energy or water conservation measures may
3-26 be a lease/purchase contract, with a term not to exceed 10 years
3-27 after the final date of installation, that meets federal tax
3-28 requirements for tax-free municipal leasing or long-term financing.
3-29 The contract shall contain provisions pursuant to which the
3-30 provider of the energy or water conservation measures guarantees
3-31 the amount of the savings to be realized by the institution of
3-32 higher education under the contract. The Master Equipment Lease
3-33 Purchase Program operated by the Texas Public Finance Authority may
3-34 be utilized by an institution to fund a contract for energy or
3-35 water conservation measures so long as the costs of the energy or
3-36 water conservation measures, including costs of design,
3-37 engineering, installation, maintenance, repairs, and anticipated
3-38 debt service requirements of the Master Equipment Lease Purchase
3-39 Program, do not exceed the total energy or water and operating cost
3-40 savings, as described in Subsection (f) [(e)], beginning after the
3-41 final date of installation.
3-42 (h) A contract under this section may be let under
3-43 competitive sealed proposal procedures. Notice of the request for
3-44 proposals shall be given in the manner provided for in Chapter
3-45 2156, Government Code. The Texas Higher Education Coordinating
3-46 Board, in consultation with the State Energy Conservation Office
3-47 and the Texas Energy Coordination Council with regard to energy
3-48 conservation measures, shall establish guidelines and an approval
3-49 process for contracts awarded under this section. The State Energy
3-50 Conservation Office and the Texas Energy Coordination Council shall
3-51 review the selected proposal before a contract for energy
3-52 conservation measures is awarded. The State Energy Conservation
3-53 Office may provide a cost-benefit analysis of the proposals for
3-54 energy conservation measures and analysis of the guaranteed savings
3-55 projected by offerors and may charge a fee for this service. The
3-56 contract shall be awarded to the responsible offeror whose
3-57 proposal, following negotiations, is determined by the institution
3-58 to be the most advantageous to the institution considering the
3-59 guaranteed savings and other evaluation factors set forth in the
3-60 request for proposals, except that if the institution finds that no
3-61 offer is acceptable, it shall refuse all offers.
3-62 (i) In accordance with regulations adopted by the
3-63 institution, the institution may conduct discussions with offerors
3-64 who submit proposals and who are determined to be reasonably
3-65 qualified for the award of the contract. Offerors shall be treated
3-66 fairly and equally with respect to any opportunity for discussion
3-67 and revision of proposals. To obtain the best final offers, the
3-68 institution may allow proposal revisions after submissions and
3-69 before the award of the contract.
4-1 (j) If provided in a request for proposals under Subsection
4-2 (h) [(g) of this section], proposals shall be opened in a manner
4-3 that avoids disclosure of the contents to competing offerors and
4-4 keeps the proposals secret during negotiations. All proposals are
4-5 open for public inspection after a contract is awarded unless the
4-6 information is excepted from disclosure under Chapter 552,
4-7 Government Code.
4-8 (k) The legislature shall base an institution's
4-9 appropriation for energy or water costs during a fiscal year on the
4-10 sum of:
4-11 (1) the institution's estimated energy or water costs
4-12 for that fiscal year; and
4-13 (2) if a contract under this section is in effect, the
4-14 institution's estimated net savings resulting from the contract
4-15 during the contract term, divided by the number of years in the
4-16 contract term.
4-17 SECTION 4. The heading to Section 2166.406, Government Code,
4-18 is amended to read as follows:
4-19 Sec. 2166.406. ENERGY OR WATER CONSERVATION MEASURES.
4-20 SECTION 5. Subsections (a) through (h), (k), and (l),
4-21 Section 2166.406, Government Code, are amended to read as follows:
4-22 (a) Notwithstanding any other provisions of this chapter,
4-23 the governing body of a state agency, without the consent of the
4-24 commission, may enter into a contract for energy or water
4-25 conservation measures to reduce energy or water consumption or
4-26 operating costs of governmental facilities in accordance with this
4-27 section.
4-28 (b) A contract authorized under this chapter includes a
4-29 contract for the installation of:
4-30 (1) insulation of the building structure and systems
4-31 within the building;
4-32 (2) storm windows or doors, caulking or weather
4-33 stripping, multiglazed windows or doors, heat absorbing or heat
4-34 reflective glazed and coated window or door systems, or other
4-35 window or door system modifications that reduce energy consumption;
4-36 (3) automatic energy control systems, including
4-37 computer software and technical data licenses;
4-38 (4) heating, ventilating, or air-conditioning system
4-39 modifications or replacements that reduce energy or water
4-40 consumption;
4-41 (5) lighting fixtures that increase energy efficiency;
4-42 (6) energy recovery systems;
4-43 (7) electric systems improvements; [or]
4-44 (8) water-conserving landscape irrigation equipment;
4-45 (9) water-saving plumbing fixtures, appliances, or
4-46 equipment;
4-47 (10) water reuse, rainwater harvesting, or other
4-48 alternative water source technologies for landscape irrigation,
4-49 toilet and urinal flushing, or other purposes;
4-50 (11) substitution of non-water-using fixtures,
4-51 appliances, equipment, or practices for water-using fixtures,
4-52 appliances, equipment, or practices, if feasible; or
4-53 (12) other energy or water conservation-related
4-54 improvements or equipment (including improvements or equipment
4-55 related to renewable energy).
4-56 (c) All energy or water conservation measures must comply
4-57 with current local, state, and federal construction and
4-58 environmental codes and regulations. Notwithstanding anything to
4-59 the contrary in Subsection (b), a contract for energy or water
4-60 conservation measures shall not include improvements or equipment
4-61 that allow or cause water from any condensing, cooling, or
4-62 industrial process or any system of nonpotable usage over which the
4-63 public water supply system officials do not have sanitary control
4-64 to be returned to the potable water supply.
4-65 (d) The entity with whom the board contracts must be
4-66 experienced in the design, implementation, and installation of the
4-67 energy or water conservation measures addressed by the contract.
4-68 (e) Before entering into a contract for energy or water
4-69 conservation measures, the governing body of the state agency shall
5-1 require the provider of the energy or water conservation measures
5-2 to file with the governing body a payment and performance bond that
5-3 is in an amount the governing body finds reasonable and necessary
5-4 to protect the interests of the state agency and that is
5-5 conditioned on the faithful execution of the terms of the contract.
5-6 (f) The state agency may enter into a contract for a period
5-7 of more than one year for energy or water conservation measures
5-8 with an entity if the state agency finds that the amount the state
5-9 agency would spend on the energy or water conservation measures
5-10 will not exceed the amount to be saved in energy or water and
5-11 operating costs over 10 years from the date of installation.
5-12 (g) A contract for energy or water conservation measures,
5-13 with respect to existing buildings or facilities, may be a
5-14 lease/purchase contract with a term not to exceed 10 years, that
5-15 meets federal tax requirements for tax-free municipal leasing or
5-16 long-term financing. The contract shall contain provisions
5-17 pursuant to which the provider of the energy or water conservation
5-18 measures guarantees the amount of the savings to be realized by the
5-19 state agency under the contract. If the term of a contract for
5-20 energy or water conservation measures exceeds one year, the
5-21 agency's contractual obligation in any year during the term of the
5-22 contract may not exceed the total energy or water and operating
5-23 cost savings, including but not limited to electrical, gas, water,
5-24 or other utility cost savings and operating cost savings resulting
5-25 from automatic monitoring and control, as determined by the state
5-26 agency in this subsection, divided by the number of years in the
5-27 contract term.
5-28 (h) A contract under this chapter may be let under
5-29 competitive sealed proposal procedures. Notice of the request for
5-30 proposals shall be given in the manner provided for in Chapter
5-31 2156, Government Code. Before awarding a [the] contract for energy
5-32 conservation measures, the state agency shall submit the selected
5-33 proposal to the State Energy Conservation Office and the Texas
5-34 Energy Coordination Council for review and comment before awarding
5-35 the contract. The State Energy Conservation Office and the Texas
5-36 Energy Coordination Council will provide a cost-benefit analysis of
5-37 the proposals for energy conservation measures and an analysis of
5-38 the guaranteed savings projected by offerors and may charge a fee
5-39 for this service. The contract shall be awarded to the responsible
5-40 offeror whose proposal, following negotiations, is determined to be
5-41 the most advantageous to the state agency considering the savings
5-42 and other evaluation factors set forth in the request for proposals
5-43 except that if the state agency finds that no offer is acceptable,
5-44 it shall refuse all offers.
5-45 (k) To obtain the best final offers, the state agency may
5-46 allow proposal revisions after submissions and before the award of
5-47 the contract. Final review and approval of a [the] contract for
5-48 energy conservation measures will be provided by the State Energy
5-49 Conservation Office.
5-50 (l) The legislature shall base an agency's appropriation for
5-51 energy or water costs during a fiscal year on the sum of:
5-52 (1) the agency's estimated energy or water costs for
5-53 that fiscal year; and
5-54 (2) if a contract under this section is in effect, the
5-55 agency's estimated net savings resulting from the contract during
5-56 the contract term, divided by the number of years in the contract
5-57 term.
5-58 SECTION 6. This Act takes effect September 1, 1999.
5-59 SECTION 7. The importance of this legislation and the
5-60 crowded condition of the calendars in both houses create an
5-61 emergency and an imperative public necessity that the
5-62 constitutional rule requiring bills to be read on three several
5-63 days in each house be suspended, and this rule is hereby suspended.
5-64 * * * * *