CS/CS/HB 271

1	A bill to be entitled
2	An act relating to contracting for efficiency or
3	conservation measures by state agencies; amending s.
4	471.023, F.S.; exempting certain business organizations
5	from obtaining a certification of authorization to provide
6	engineering services to the public; amending s. 489.145,
7	F.S.; including water and wastewater efficiency and
8	conservation in the measures encouraged by the
9	Legislature; revising definitions; providing for inclusion
10	of water and wastewater efficiency and conservation
11	measures in guaranteed performance savings contracts
12	entered into by state agencies, municipalities, or
13	political subdivisions; exempting guaranteed performance
14	savings contractors from engineering certification
15	requirements under certain circumstances; amending s.
16	1013.23, F.S.; exempting energy performance contractors
17	from engineering certification requirements under certain
18	circumstances; amending s. 287.064, F.S., relating to
19	consolidated financing of deferred-payment purchases, to
20	conform; providing an effective date.
21
22	Be It Enacted by the Legislature of the State of Florida:
23
24	Section 1.  Subsection (6) is added to section 471.023,
25	Florida Statutes, to read:
26	471.023  Certification of business organizations.--
27	(6)  This section does not apply to business organizations
28	registered as energy performance contractors as defined in s.
29	1013.23(2)(d).
30	Section 2.  Section 489.145, Florida Statutes, is amended
31	to read:
32	489.145  Guaranteed energy performance savings
33	contracting.--
34	(1)  SHORT TITLE.--This section may be cited as the
35	"Guaranteed Energy Performance Savings Contracting Act."
36	(2)  LEGISLATIVE FINDINGS.--The Legislature finds that
37	investment in energy, water, and wastewater efficiency or
38	conservation measures in agency facilities can reduce the amount
39	of energy and water consumed and wastewater to be treated and
40	produce immediate and long-term savings. It is the policy of
41	this state to encourage each agency agencies to invest in
42	energy, water, and wastewater efficiency or conservation
43	measures that provide such reductions reduce energy consumption,
44	produce a cost savings for the agency, and, for energy measures,
45	improve the quality of indoor air in public facilities and to
46	operate, maintain, and, when economically feasible, build or
47	renovate existing agency facilities in such a manner as to
48	minimize energy and water consumption and wastewater production
49	and maximize energy, water, and wastewater savings. It is
50	further the policy of this state to encourage each agency
51	agencies to reinvest any energy savings resulting from energy,
52	water, and wastewater efficiency or conservation measures in
53	additional energy, water, and wastewater efficiency or
54	conservation measures efforts.
55	(3)  DEFINITIONS.--As used in this section, the term:
56	(a)  "Agency" means the state, a municipality, or a
57	political subdivision.
58	(b)  "Energy, water, or wastewater efficiency or
59	conservation measure" means a training program, facility
60	alteration, or equipment purchase to be used in new facilities
61	or in retrofitting or adding to existing facilities or
62	infrastructure that new construction, including an addition to
63	an existing facility, which reduces energy, water, wastewater,
64	or operating costs and includes, but is not limited to:
65	1.  Insulation of the facility structure and systems within
66	the facility.
67	2.  Storm windows and doors, caulking or weatherstripping,
68	multiglazed windows and doors, heat-absorbing, or heat-
69	reflective, glazed and coated window and door systems,
70	additional glazing, reductions in glass area, and other window
71	and door system modifications that reduce energy consumption.
72	3.  Automatic energy control systems.
73	4.  Heating, ventilating, or air-conditioning system
74	modifications or replacements.
75	5.  Replacement or modifications of lighting fixtures to
76	increase the energy efficiency of the lighting system, which, at
77	a minimum, must conform to the applicable state or local
78	building code.
79	6.  Energy recovery systems.
80	7.  Cogeneration systems that produce steam or forms of
81	energy such as heat, as well as electricity, for use primarily
82	within a facility or complex of facilities.
83	8.  Energy conservation measures that provide long-term
84	operating cost reductions or significantly reduce Btu consumed.
85	9.  Renewable energy systems, such as solar, biomass, or
86	wind systems.
87	10.  Devices that reduce water consumption or wastewater
88	sewer charges.
89	11.  Equipment upgrades that improve the accuracy of
90	billable revenue-generating systems.
91	12.  Automated electronic or remotely controlled systems or
92	measures that reduce direct personnel costs.
93	13.  Such other energy, water, or wastewater efficiency or
94	conservation measures as may provide measurable operating cost
95	reductions or billable revenue increases.
96	14.11.  Energy storage systems, such as fuel cells and
97	thermal storage.
98	15.12.  Energy-generating generating technologies, such as
99	microturbines.
100	16.  Cool roof coating.
101	17.13.  Any other repair, replacement, or upgrade of
102	existing equipment.
103	(c)  "Energy, water, or wastewater cost savings" means a
104	measured reduction in the cost of fuel, energy or water
105	consumption, or wastewater production and stipulated improvement
106	in the operation and maintenance created from the implementation
107	of one or more energy, water, or wastewater efficiency or
108	conservation measures when compared with an established baseline
109	for the previous cost of fuel, energy or water consumption, or
110	wastewater production and stipulated operation and maintenance.
111	(d)  "Guaranteed energy performance savings contract" means
112	a contract for the evaluation, recommendation, and
113	implementation of energy, water, or wastewater efficiency or
114	conservation measures, which, at a minimum, shall include:
115	1.  The design and installation of equipment to implement
116	one or more of such measures and, if applicable, operation and
117	maintenance of such measures.
118	2.  The amount of any actual annual savings that meet or
119	exceed total annual contract payments made by the agency for the
120	contract.
121	3.  The finance charges incurred by the agency over the
122	life of the contract.
123	(e)  "Guaranteed energy performance savings contractor"
124	means a person or business that is licensed under chapter 471,
125	chapter 481, or this chapter, and is experienced in the
126	analysis, design, implementation, or installation of energy,
127	water, or wastewater efficiency or conservation measures through
128	energy performance contracts.
129	(4)  PROCEDURES.--
130	(a)  An agency may enter into a guaranteed energy
131	performance savings contract with a guaranteed energy
132	performance savings contractor to significantly reduce energy,
133	water, or wastewater or operating costs of an agency facility
134	through one or more energy, water, or wastewater efficiency or
135	conservation measures.
136	(b)  Before design and installation of energy, water, or
137	wastewater efficiency and conservation measures, the agency must
138	obtain from a guaranteed energy performance savings contractor a
139	report that summarizes the costs associated with the energy
140	conservation measures and provides an estimate of the amount of
141	the associated energy cost savings or operational improvements.
142	The issuance of such report and the design and installation of
143	energy, water, or wastewater efficiency and conservation
144	measures pursuant to a guaranteed performance savings contract
145	shall not subject the guaranteed performance savings contractor
146	to the provisions of s. 471.023. The agency and the guaranteed
147	energy performance savings contractor may enter into a separate
148	agreement to pay for costs associated with the preparation and
149	delivery of the report; however, payment to the contractor shall
150	be contingent upon the report's projection of energy cost
151	savings being equal to or greater than the total projected costs
152	of the design and installation of the report's energy
153	conservation or efficiency measures.
154	(c)  The agency may enter into a guaranteed energy
155	performance savings contract with a guaranteed energy
156	performance savings contractor if the agency finds that the
157	amount the agency would spend on the energy conservation or
158	efficiency measures will not likely exceed the amount of the
159	associated energy cost savings for up to 20 years from the date
160	of installation, based on the life cycle cost calculations
161	provided in s. 255.255, if the recommendations in the report
162	were followed and if the qualified provider or providers give a
163	written guarantee that such the energy cost savings will meet or
164	exceed the costs of the system. The contract may provide for
165	installment payments for a period not to exceed 20 years.
166	(d)  A guaranteed energy performance savings contractor
167	must be selected in compliance with s. 287.055; except that if
168	fewer than three firms are qualified to perform the required
169	services, the requirement for agency selection of three firms,
170	as provided in s. 287.055(4)(b), and the bid requirements of s.
171	287.057 do not apply.
172	(e)  Before entering into a guaranteed energy performance
173	savings contract, an agency must provide published notice of the
174	meeting in which it proposes to award the contract, the names of
175	the parties to the proposed contract, and the contract's
176	purpose.
177	(f)  A guaranteed energy performance savings contract may
178	provide for financing, including tax-exempt tax exempt
179	financing, by a third party. The contract for third-party third
180	party financing may be separate from the energy performance
181	savings contract. A separate contract for third-party third
182	party financing must include a provision that the third-party
183	third party financier must not be granted rights or privileges
184	that exceed the rights and privileges available to the
185	guaranteed energy performance savings contractor.
186	(g)  In determining the amount the agency will finance to
187	acquire the efficiency or energy conservation measures, the
188	agency may reduce such amount by the application of any grant
189	moneys, rebates, or capital funding available to the agency for
190	the purpose of buying down the cost of the guaranteed energy
191	performance savings contract. However, in calculating the life
192	cycle cost as required in paragraph (c), the agency shall not
193	apply any grants, rebates, or capital funding.
194	(5)  CONTRACT PROVISIONS.--
195	(a)  A guaranteed energy performance savings contract must
196	include a written guarantee that may include, but is not limited
197	to the form of, a letter of credit, insurance policy, or
198	corporate guarantee by the guaranteed energy performance savings
199	contractor that annual associated energy cost savings will meet
200	or exceed the amortized cost of the efficiency or energy
201	conservation measures.
202	(b)  The guaranteed energy performance savings contract
203	must provide that all payments, except obligations on
204	termination of the contract before its expiration, may be made
205	over time, but not to exceed 20 years from the date of complete
206	installation and acceptance by the agency, and that the annual
207	savings are guaranteed to the extent necessary to make annual
208	payments to satisfy the guaranteed energy performance savings
209	contract.
210	(c)  The guaranteed energy performance savings contract
211	must require that the guaranteed energy performance savings
212	contractor to whom the contract is awarded provide a 100-percent
213	public construction bond to the agency for its faithful
214	performance, as required by s. 255.05.
215	(d)  The guaranteed energy performance savings contract may
216	contain a provision allocating to the parties to the contract
217	any annual associated energy cost savings that exceed the amount
218	of the associated energy cost savings guaranteed in the
219	contract.
220	(e)  The guaranteed energy performance savings contract
221	shall require the guaranteed energy performance savings
222	contractor to provide to the agency an annual reconciliation of
223	the guaranteed associated energy cost savings. If the
224	reconciliation reveals a shortfall in such annual energy cost
225	savings, the guaranteed energy performance savings contractor is
226	liable for such shortfall. If the reconciliation reveals an
227	excess in such annual energy cost savings, the excess savings
228	may be allocated under paragraph (d) but may not be used to
229	cover potential energy cost savings shortages in subsequent
230	contract years.
231	(f)  The guaranteed energy performance savings contract
232	must provide for payments of not less than one-twentieth of the
233	price to be paid within 2 years from the date of the complete
234	installation and acceptance by the agency, and the remaining
235	costs to be paid at least quarterly, not to exceed a 20-year
236	term, based on life cycle cost calculations.
237	(g)  The guaranteed energy performance savings contract may
238	extend beyond the fiscal year in which it becomes effective;
239	however, the term of any contract expires at the end of each
240	fiscal year and may be automatically renewed annually for up to
241	20 years, subject to the agency making sufficient annual
242	appropriations based upon continued realized energy, water, or
243	wastewater savings.
244	(h)  The guaranteed energy performance savings contract
245	must stipulate that it does not constitute a debt, liability, or
246	obligation of the state.
247	(6)  PROGRAM ADMINISTRATION AND CONTRACT REVIEW.--The
248	Department of Management Services, with the assistance of the
249	Office of the Chief Financial Officer, may, within available
250	resources, provide technical assistance to state agencies
251	contracting for energy, water, or wastewater efficiency or
252	conservation measures and engage in other activities considered
253	appropriate by the department for promoting and facilitating
254	guaranteed energy performance contracting by state agencies. The
255	Office of the Chief Financial Officer, with the assistance of
256	the Department of Management Services, may, within available
257	resources, develop model contractual and related documents for
258	use by state agencies. Prior to entering into a guaranteed
259	energy performance savings contract, any contract or lease for
260	third-party financing, or any combination of such contracts, a
261	state agency shall submit such proposed contract or lease to the
262	Office of the Chief Financial Officer for review and approval.
263	Section 3.  Paragraph (d) of subsection (3) of section
264	1013.23, Florida Statutes, is amended to read:
265	1013.23  Energy efficiency contracting.--
266	(3)  ENERGY PERFORMANCE-BASED CONTRACT PROCEDURES.--
267	(d)  Prior to the design and installation of the energy
268	conservation measure, the district school board, community
269	college board of trustees, or state university board of trustees
270	must obtain from the energy performance contractor a report that
271	discloses all costs associated with the energy conservation
272	measure and provides an estimate of the amount of the energy
273	cost savings. The report must be reviewed by either the
274	Department of Education or the Department of Management Services
275	or signed and sealed by a registered professional engineer. The
276	issuance of such report and the design and installation of
277	energy conservation measures pursuant to an energy performance-
278	based contract shall not subject the energy performance
279	contractor to the provisions of s. 471.023.
280	Section 4.  Subsection (10) of section 287.064, Florida
281	Statutes, is amended to read:
282	287.064  Consolidated financing of deferred-payment
283	purchases.--
284	(10)  Costs incurred pursuant to a guaranteed energy
285	performance savings contract, including the cost of energy,
286	water, or wastewater efficiency and conservation measures, each
287	as defined in s. 489.145, may be financed pursuant to a master
288	equipment financing agreement; however, the costs of training,
289	operation, and maintenance may not be financed. The period of
290	time for repayment of the funds drawn pursuant to the master
291	equipment financing agreement under this subsection may exceed 5
292	years but may not exceed 10 years.
293	Section 5.  This act shall take effect July 1, 2007.

CODING: Words stricken are deletions; words underlined are additions.