2007S0405-1 02/16/07

By: Ellis S.B. No. 831

A BILL TO BE ENTITLED

AN ACT

relating to energy savings performance contracts.

BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:

SECTION 1. Subsections (f) and (i), Section 44.901, Education Code, are amended to read as follows:

(f) An energy savings performance contract may be financed:

(1) under a lease/purchase contract that has a term not to exceed 20 [15] years from the final date of installation and that meets federal tax requirements for tax-free municipal leasing or long-term financing;

(2) with the proceeds of bonds; or

(3) under a contract with the provider of the energy or water conservation measures that has a term not to exceed the lesser of 20 years or the average useful life of the energy or water conservation or usage measures [15 years from the final date of installation].

(i) Before entering into an energy savings performance contract, the board must require that the cost savings projected by an offeror be reviewed by a licensed professional engineer who has a minimum of three years of experience in energy calculation and review, is not an officer or employee of an offeror for the contract under review, and is not otherwise associated with the contract or the offeror. The engineer's review shall focus only on the methodology and calculations related to cost savings, increases in revenue, and, if applicable, efficiency or accuracy of metering equipment [is not an officer or employee of an offeror for the contract under review or otherwise associated with the contract or the offeror]. An engineer who reviews a contract shall maintain the confidentiality of any proprietary information the engineer acquires while reviewing the contract. Sections 1001.053 and 1001.407, Occupations Code, apply to work performed under the contract.

SECTION 2. Subsections (f), (g), and (i), Section 51.927, Education Code, are amended to read as follows:

(f) The board may enter into an energy savings performance contract for a period of more than one year only if the board finds that the amount the institution would spend on the energy or water conservation measures will not exceed the amount to be saved in energy, water, wastewater, and operating costs over 20 [15] years from the date of installation. If the term of the contract exceeds one year, the institution's contractual obligation in any year during the term of the contract beginning after the final date of installation may not exceed the total energy, water, wastewater, and operating cost savings, including electrical, gas, water, wastewater, or other utility cost savings and operating cost savings resulting from the measures, as determined by the board in this subsection, divided by the number of years in the contract term beginning after the final date of installation. The board shall consider all costs of the energy or water conservation measures, including costs of design, engineering, installation, maintenance, repairs, and debt service.

(g) An energy savings performance contract may be financed:

(1) under a lease/purchase contract that has a term not to exceed 20 [15] years from the final date of installation and that meets federal tax requirements for tax-free municipal leasing or long-term financing, including a lease/purchase contract under the master equipment lease purchase program administered by the Texas Public Finance Authority under Chapter 1232, Government Code;

(2) with the proceeds of bonds; or

(3) under a contract with the provider of the energy or water conservation measures that has a term not to exceed the lesser of 20 years or the average useful life of the energy or water conservation or usage measures [15 years from the final date of installation].

(i) An energy savings performance contract shall be let according to the procedures established for procuring certain professional services by Section 2254.004, Government Code. Notice of the request for qualifications shall be given in the manner provided by Section 2156.002, Government Code. The Texas Higher Education Coordinating Board, in consultation with the State Energy Conservation Office with regard to energy and water conservation measures, shall establish guidelines and an approval process for awarding energy savings performance contracts. The guidelines must require that the cost savings projected by an offeror be reviewed by a licensed professional engineer who has a minimum of three years of experience in energy calculation and review, is not an officer or employee of an offeror for the contract under review, and is not otherwise associated with the contract or the offeror. The engineer's review shall focus only on the methodology and calculations related to cost savings, increases in revenue, and, if applicable, efficiency or accuracy of metering equipment [is not an officer or employee of an offeror for the contract under review or otherwise associated with the contract]. An engineer who reviews a contract shall maintain the confidentiality of any proprietary information the engineer acquires while reviewing the contract. A contract is not required to be reviewed or approved by the State Energy Conservation Office. Sections 1001.053 and 1001.407, Occupations Code, apply to work performed under the contract.

SECTION 3. Subsections (f), (g), and (i), Section 2166.406, Government Code, are amended to read as follows:

(f) The state agency may enter into an energy savings performance contract for a period of more than one year only if the state agency finds that the amount the state agency would spend on the energy or water conservation measures will not exceed the amount to be saved in energy, water, wastewater, and operating costs over 20 [15] years from the date of installation.

(g) An energy savings performance contract with respect to existing buildings or facilities may be financed:

(1) under a lease/purchase contract that has a term not to exceed 20 [15] years from the final date of installation and that meets federal tax requirements for tax-free municipal leasing or long-term financing, including a lease/purchase contract under the master equipment lease purchase program administered by the Texas Public Finance Authority under Chapter 1232;

(2) with the proceeds of bonds; or

(3) under a contract with the provider of the energy or water conservation measures that has a term not to exceed the lesser of 20 years or the average useful life of the energy or water conservation or usage measures [15 years from the final date of installation].

(i) An energy savings performance contract shall be let according to the procedures established for procuring certain professional services by Section 2254.004. Notice of the request for qualifications shall be given in the manner provided by Section 2156.002. The State Energy Conservation Office shall establish guidelines and an approval process for awarding energy savings performance contracts. The guidelines adopted under this subsection must require that the cost savings projected by an offeror be reviewed by a licensed professional engineer who has a minimum of three years of experience in energy calculation and review, is not an officer or employee of an offeror for the contract under review, and is not otherwise associated with the contract or the offeror. The engineer's review shall focus only on the methodology and calculations related to cost savings, increases in revenue, and, if applicable, efficiency or accuracy of metering equipment [is not an officer or employee of an offeror for the contract under review or otherwise associated with the contract]. An engineer who reviews a contract shall maintain the confidentiality of any proprietary information the engineer acquires while reviewing the contract. An energy savings performance contract may not be entered into unless the contract has been approved by the State Energy Conservation Office. Sections 1001.053 and 1001.407, Occupations Code, apply to work performed under the contract.

SECTION 4. Section 302.001, Local Government Code, is amended to read as follows:

Sec. 302.001. DEFINITIONS. In this chapter:

(1) "Baseline" means a calculation or set of calculations, set forth in an energy savings performance contract, of:

(A) costs for energy or water usage by a local government and related net operating costs;

(B) billable revenues from providing energy, water, or other utilities to users; or

(C) the efficiency or accuracy, for any period, of:

(i) metering or related equipment, systems, or processes or procedures;

(ii) the calculation or set of calculations that may constitute or be based on historical costs, revenues, or accuracy; and

(iii) the components.

(2) "Energy or water conservation or usage measures" means the installation or implementation of any of the items, equipment, modifications, alterations, improvements, systems, and other measures described by Subdivision (4) that are intended to provide estimated energy savings, an estimated increase in billable revenues, or an estimated increase in meter accuracy, or the training for, or services related to, the operation of those items, equipment, modifications, alterations, improvements, systems, or other measures.

(3) "Energy savings" means an estimated reduction in net fuel costs, energy costs, water costs, stormwater fees, other utility costs, or related net operating costs from or as compared to an established baseline of such costs.

(4) "Energy savings performance contract" means a contract between a local government and a provider for energy or water conservation or usage measures in which the estimated energy savings, the estimated increase in billable revenues, or the estimated increase in meter accuracy resulting from the measures is subject to a guarantee to offset the cost of the energy or water conservation or usage measures over a specified period. The term includes a contract for the installation or implementation of the following, along with all causally connected work [for energy or water conservation measures to reduce energy or water consumption or operating costs of local government facilities in which the estimated savings in utility costs resulting from the measures is guaranteed to offset the cost of the measures over a specified period. The term includes a contract for the installation or implementation of]:

(A) insulation of a building structure and systems within the building;

(B) storm windows or doors, caulking or weather stripping, multiglazed windows or doors, heat-absorbing or heat-reflective glazed and coated window or door systems, or other window or door system modifications that reduce energy consumption;

(C) automatic energy control systems, including computer software and technical data licenses;

(D) heating, ventilating, or air-conditioning system modifications or replacements that reduce energy or water consumption;

(E) lighting fixtures that increase energy efficiency;

(F) energy recovery systems;

(G) electric systems improvements;

(H) water-conserving fixtures, appliances, and equipment or the substitution of non-water-using fixtures, appliances, and equipment;

(I) water-conserving landscape irrigation equipment;

(J) landscaping measures that reduce watering demands and capture and hold applied water and rainfall, including:

(i) landscape contouring, including the use of berms, swales, and terraces; and

(ii) the use of soil amendments that increase the water-holding capacity of the soil, including compost;

(K) rainwater harvesting equipment and equipment to make use of water collected as part of a storm-water system installed for water quality control;

(L) equipment for recycling or reuse of water originating on the premises or from other sources, including treated municipal effluent;

(M) equipment needed to capture water from nonconventional, alternate sources, including air-conditioning condensate or graywater, for nonpotable uses;

(N) metering or related equipment or systems that improve the accuracy of billable-revenue-generation systems [equipment needed to segregate water use in order to identify water conservation opportunities or verify water savings]; or

(O) other energy or water conservation-related improvements or equipment, including improvements or equipment relating to renewable energy or nonconventional water sources or water reuse.

(5) "Guarantee" means the written guarantee of a provider that any or all of the energy savings, the increase in billable revenues, or the increase in meter accuracy from the energy or water conservation or usage measures in the energy savings performance contract will at least equal the cost of the energy or water conservation or usage measures, all causally connected work, and ancillary improvements under an energy savings performance contract. A guarantee, or the part of a broader guarantee, regarding any metering or related equipment, system, or process or procedure may be only a meter guarantee.

(6) "Increase in billable revenues" means an estimated increase in billable revenues over or as compared to an established baseline of such billable revenues.

(7) "Increase in meter accuracy" means an estimated increase in efficiency or accuracy of metering or related equipment, systems, or processes or procedures that is calculated or determined in accordance with applicable industry engineering standards.

(8) "Local government" means a county, municipality, or other political subdivision of this state. The term does not include a school district authorized to enter into an energy savings performance contract under Section 44.901, Education Code.

(9) "Meter guarantee" means a guarantee of a stipulated or agreed upon increase in billable revenues, based on stipulated or agreed upon components of a billable revenue calculation, all as set forth in an energy savings performance contract, resulting from the estimated increase in meter accuracy also set forth in the contract.

(10) "Provider" means an entity, or its affiliate, in the business of designing, implementing, and installing of energy or water conservation or usage measures

[(2) "Local government" means a county, municipality, or other political subdivision of this state. The term does not include a school district authorized to enter into an energy savings performance contract under Section 44.901, Education Code].

SECTION 5. Subsection (b), Section 302.002, Local Government Code, is amended to read as follows:

(b) Each energy or water conservation or usage measure must comply with current local, state, and federal construction, plumbing, and environmental codes and regulations. Notwithstanding any provision of Section 302.001 [302.001(1)], an energy savings performance contract may not include improvements or equipment that allow or cause water from any condensing, cooling, or industrial process or any system of nonpotable usage over which public water supply system officials do not have sanitary control to be returned to the potable water supply.

SECTION 6. Section 302.003, Local Government Code, is amended to read as follows:

Sec. 302.003. PAYMENT AND PERFORMANCE BOND. Notwithstanding any other law, before entering into an energy savings performance contract, the governing body of the local government shall require the provider of the energy or water conservation or usage measures to file with the governing body a payment and performance bond relating to the installation of the measures in accordance with Chapter 2253, Government Code. The governing body may also require a separate bond to cover the value of the guarantee [guaranteed savings on the contract].

SECTION 7. Section 302.004, Local Government Code, is amended to read as follows:

Sec. 302.004. METHOD OF FINANCING; TERMS OF CONTRACT. (a) An energy savings performance contract may be financed:

(1) under a lease-purchase contract that has a term not to exceed 20 [15] years from the final date of installation and that meets federal tax requirements for tax-free municipal leasing or long-term financing;

(2) with the proceeds of bonds; or

(3) under a contract with the provider of the energy or water conservation or usage measures that has a term not to exceed the lesser of 20 years or the average useful life of the energy or water conservation or usage measures [15 years from the final date of installation].

(b) An energy savings performance contract shall contain provisions requiring the provider of the energy or water conservation or usage measures to provide a guarantee [the amount of the savings to be realized by the local government under the contract]. If the term of the contract exceeds one year, the local government's contractual obligations in any one year during the term of the contract beginning after the final date of installation under the contract may not exceed the total energy and[,] water, wastewater, savings, billable revenues, net [and] operating cost savings, and stipulated or agreed upon increase in billable revenues resulting from the estimated increase in meter accuracy [including electrical, gas, water, wastewater, or other utility cost savings and operating cost savings resulting from the measures as determined by the local government in this subsection], divided by the number of years in the contract term.

SECTION 8. Section 302.005, Local Government Code, is amended to read as follows:

Sec. 302.005. BIDDING PROCEDURES; AWARD OF CONTRACT. (a) An energy savings performance contract under this chapter may be let in accordance with the procedures established for procuring certain professional services by Section 2254.004, Government Code. Notice of the request for qualifications shall be published in the manner provided for competitive bidding.

(b) Before entering into an energy savings performance contract, the governing body must require that the energy savings, the increase in billable revenues, or the increase in meter accuracy estimated or [cost savings] projected by a provider [an offeror] be reviewed by a licensed professional engineer, who:

(1) has a minimum of three years of experience in energy calculation and review;

(2) is not an officer or employee of a provider [an offeror] for the contract under review; and

(3) is not [or] otherwise associated with the contract or the provider.

(c) The engineer's review shall focus only on the methodology and calculations related to cost savings, increases in revenue, and, if applicable, efficiency or accuracy of metering equipment [offeror]. An engineer who reviews a contract shall maintain the confidentiality of any proprietary information the engineer acquires while reviewing the contract. Sections 1001.053 and 1001.407, Occupations Code, apply to work performed under the contract.

SECTION 9. Chapter 302, Local Government Code, is amended by adding Section 302.006 to read as follows:

Sec. 302.006. METER GUARANTEES. (a) This section applies to any energy savings performance contract that provides for any metering or related equipment, system, or process or procedure and that includes a meter guarantee by the provider, whether or not the meter guarantee is part of a broader guarantee applicable to other energy or water conservation or usage measures or causally connected work.

(b)(1) On or before each five-year anniversary of the effective date of an energy savings performance contract, an engineer shall test a statistically relevant sample of the meters installed or implemented under the contract to determine or calculate their actual average accuracy and shall compare that actual average accuracy to the baseline average accuracy of those tested meters, as of that date.

(2) If the engineer reports to the local government and the provider that the actual average accuracy of the tested meters as of the testing date is less than the baseline average accuracy of those tested meters as of the testing date, the meter guarantee in the contract applies.

(3) The amount payable under the meter guarantee, if any, must be determined for each year in the five or fewer years subject to the engineer's report and is equal to the difference between:

(A) the agreed upon increase in billable revenues, based on the estimated accuracy of all of the meters, under the energy savings performance contract for each such year; and

(B) the revenues for the same year that would result from applying the engineer's reported actual average accuracy of the tested meters to all of the meters subject to the energy savings performance contract, using the same agreed upon components set forth in the contract that were used to calculate the agreed upon increase in billable revenues set forth in the contract for that year and assuming that the annual decrease in actual average accuracy of all of the meters was a pro rata percentage of the reported total decrease in actual average accuracy.

(4) Notwithstanding Subdivision (3) of this section, if the meter guarantee in the contract is part of a broader guarantee applicable to other energy or water conservation or usage measures or causally connected work under the contract, the amount payable under the meter guarantee for any year during the measurement period shall be reduced or offset by the difference, if any, between:

(A) the amount of the energy savings and increase in billable revenues resulting from the other energy or water conservation or usage measures or causally connected work for that year during the measurement period; and

(B) the guaranteed amount of the energy savings and increase in billable revenues from such other energy or water conservation or usage measures or causally connected work for that year during the measurement period under the contract.

(c) Each test conducted under Subsection (b) must be performed in accordance with the procedures established by the International Performance Measurement and Verification Protocol or succeeding standards of the United States Department of Energy.

(d) An engineer conducting a test under Subsection (b) shall verify that the tested meters have been properly maintained and are operating properly. The engineer shall also comply with Section 302.005(c).

SECTION 10. Section 39.107, Utilities Code, is amended by adding Subsection (i) to read as follows:

(i) This section does not apply to a meter that was installed as part of an energy savings performance contract.

SECTION 11. The changes in law made by this Act apply only to an energy savings performance contract entered into on or after the effective date of this Act. An energy savings performance contract entered into before the effective date of this Act is covered by the law as it existed at the time the contract was entered into, and that law is continued in effect for that purpose.

SECTION 12. This Act takes effect immediately if it receives a vote of two-thirds of all the members elected to each house, as provided by Section 39, Article III, Texas Constitution. If this Act does not receive the vote necessary for immediate effect, this Act takes effect September 1, 2007.