Senate Study Bill 1296





                                       SENATE FILE       
                                       BY  (PROPOSED COMMITTEE ON
                                            GOVERNMENT OVERSIGHT
                                            BILL BY CO=CHAIRPERSONS
                                            COURTNEY AND LUNDBY)


    Passed Senate,  Date               Passed House, Date             
    Vote:  Ayes        Nays           Vote:  Ayes        Nays         
                 Approved                            

                                      A BILL FOR

  1 An Act providing for energy performance=based contracts for
  2    certain public entities and public educational facilities.
  3 BE IT ENACTED BY THE GENERAL ASSEMBLY OF THE STATE OF IOWA:
  4 TLSB 2098XC 81
  5 rn/gg/14

PAG LIN



  1  1    Section 1.  NEW SECTION.  297A.l  STATE POLICY.
  1  2    The general assembly finds that investment in energy
  1  3 conservation measures by public facilities can reduce the
  1  4 amount of energy consumed by the facilities and produce both
  1  5 immediate and long=term cost savings.  It is the policy of
  1  6 this state to encourage school districts, area education
  1  7 agencies, community colleges, public universities,
  1  8 municipalities, counties, and state institutions to invest in
  1  9 facility technology infrastructure upgrades and energy
  1 10 conservation measures that reduce energy consumption, produce
  1 11 a cost savings, or improve the quality of indoor air, or when
  1 12 economically feasible, to build, operate, maintain, or
  1 13 renovate public facilities in a manner which will minimize
  1 14 energy consumption or maximize energy savings.  It is
  1 15 additionally the policy of this state to encourage
  1 16 reinvestment of energy savings resulting from energy
  1 17 conservation measures and facility technology infrastructure
  1 18 upgrades into additional and continued energy conservation
  1 19 efforts.  The department of natural resources, in consultation
  1 20 with the department of education, shall adopt rules pursuant
  1 21 to chapter 17A for the administration of this chapter.
  1 22    Sec. 2.  NEW SECTION.  297A.2  DEFINITIONS.
  1 23    As used in this chapter, unless the context otherwise
  1 24 requires:
  1 25    1.  "Energy conservation measure or facility technology
  1 26 infrastructure upgrade" means a training program, facility
  1 27 alteration, or equipment to be used in new construction,
  1 28 including an addition to an existing facility, that reduces
  1 29 energy costs and includes, but is not limited to, any of the
  1 30 following:
  1 31    a.  Insulation of the facility structure or systems within
  1 32 the facility.
  1 33    b.  Storm windows or doors, caulking or weather stripping,
  1 34 multiple=glazed windows or doors, heat=absorbing or heat=
  1 35 reflective glazed and coated window or door systems,
  2  1 additional glazing, reductions in glass area, or other window
  2  2 and door system modifications that reduce energy consumption.
  2  3    c.  Automated or computerized energy control systems
  2  4 including related software=required network communication
  2  5 wiring, computer devices, wiring and support services for
  2  6 building maintenance or delivery of energy conservation
  2  7 services.  Such energy control system technology
  2  8 infrastructure may be used, as applicable, for other public
  2  9 corporation technology needs.  Other technology infrastructure
  2 10 improvements may be implemented if the cost is supported by
  2 11 the energy savings generated by other energy conservation
  2 12 measures or facility technology infrastructure upgrades.
  2 13    d.  Heating, ventilating, or air conditioning system
  2 14 modifications or replacements.
  2 15    e.  Replacement or modification of lighting fixtures to
  2 16 increase the energy efficiency of the lighting system which,
  2 17 at a minimum, shall conform to the applicable state or local
  2 18 building code.
  2 19    f.  Energy recovery systems.
  2 20    g.  Renewable energy systems, such as solar, biomass, and
  2 21 wind.
  2 22    h.  Devices that reduce water consumption or sewer charges.
  2 23    i.  Any measure not otherwise defined that produces energy
  2 24 cost savings or British thermal unit reductions.
  2 25    2.  "Energy cost savings" means a measured reduction in
  2 26 fuel, energy, or operation and maintenance cost savings
  2 27 created from the implementation of one or more energy
  2 28 conservation measures or facility technology infrastructure
  2 29 upgrades when compared with an established baseline for
  2 30 previous fuel, energy, or operation and maintenance costs.
  2 31    3.  "Energy performance=based contract" means a contract
  2 32 for the recommendation and implementation of energy
  2 33 conservation measures or facility technology infrastructure
  2 34 upgrades which includes, at a minimum, all of the following:
  2 35    a.  The design and installation of equipment to implement
  3  1 one or more energy conservation measures or facility
  3  2 technology infrastructure upgrades, and, if applicable,
  3  3 operation and maintenance of such measures or upgrades.
  3  4    b.  The amount of any actual annual energy and operational
  3  5 cost savings.  The amount shall be guaranteed in the contract
  3  6 by the qualified provider and verified by a professional
  3  7 engineer or registered architect who is not employed or has
  3  8 contracted with the qualified provider.  The verification
  3  9 shall occur using a process established by the department of
  3 10 natural resources.
  3 11    4.  "Energy performance=based evaluation" means performance
  3 12 of an energy audit, data collection, or other related analyses
  3 13 preliminary to the undertaking of energy conservation measures
  3 14 or facility technology infrastructure upgrades, and
  3 15 maintenance of project monitoring and data collection to
  3 16 verify postinstallation energy consumption and energy=related
  3 17 operating costs.  The department of natural resources shall
  3 18 establish performance guidelines that consider federal energy
  3 19 management program guidelines.  Any cost for support services
  3 20 for building maintenance or delivery of energy conservation
  3 21 services that will continue beyond the length of an energy
  3 22 performance=based contract shall be identified specifically in
  3 23 the energy performance=based evaluation.
  3 24    5.  "Maintenance cost savings" means auditable operating
  3 25 expenses eliminated and future capital replacement
  3 26 expenditures avoided as a result of new equipment installed or
  3 27 services performed by the qualified provider.
  3 28    6.  "Public corporation" means a school district as
  3 29 described in chapter 274, a community college as defined in
  3 30 chapter 260C, a public university, city, county, or state
  3 31 agency.
  3 32    7.  "Qualified provider" means a business or person that
  3 33 has been qualified by the department of natural resources.
  3 34 The department of natural resources shall adopt rules pursuant
  3 35 to chapter 17A to establish a qualifications process.  The
  4  1 process shall consider accreditation by the national
  4  2 association of energy service companies, certification by the
  4  3 association of energy engineers, or professional licensure as
  4  4 an engineer or registered architect in Iowa.  A business or
  4  5 person accredited by the national association of energy
  4  6 service companies shall be qualified in Iowa.
  4  7    Sec. 3.  NEW SECTION.  297A.3  REQUESTS FOR PROPOSALS
  4  8 EVALUATION.
  4  9    1.  Prior to entering into an energy performance=based
  4 10 contract as provided in section 297A.4, a public corporation
  4 11 shall announce a request for proposals.  A request for
  4 12 proposals shall be advertised for public bidding and let
  4 13 publicly.  The model request for proposals format developed by
  4 14 the department of natural resources shall be made available
  4 15 for use by public corporations.  A public corporation shall
  4 16 administer the public bidding and letting, requesting
  4 17 innovative solutions and proposals for energy conservation
  4 18 measures and facility technology infrastructure upgrades.
  4 19 Proposals submitted shall be sealed.  If the model request for
  4 20 proposals format is not used, the request for proposals shall
  4 21 include, at a minimum, all of the following:
  4 22    a.  Name and address of the public corporation.
  4 23    b.  Name, address, title, and telephone number of a contact
  4 24 person for the public corporation.
  4 25    c.  Notice indicating that the public corporation is
  4 26 requesting qualified providers to propose energy conservation
  4 27 measures and facility technology infrastructure upgrades to be
  4 28 provided pursuant to an energy performance=based contract.
  4 29    d.  Date, time, and place where proposals must be received.
  4 30    e.  Evaluation criteria for assessing the proposals.
  4 31    f.  Any other stipulations and clarifications the public
  4 32 corporation may require.
  4 33    2.  The public corporation shall evaluate any sealed
  4 34 proposal from a qualified provider.  Sealed proposals shall be
  4 35 opened by a designated member or employee of the governing
  5  1 body of the public corporation at a public meeting during
  5  2 which the contents of the proposals shall be announced.  Each
  5  3 person submitting a sealed proposal must receive at least ten
  5  4 days' notice of the time and place of the public meeting at
  5  5 which the public corporation proposes to award an energy
  5  6 performance=based contract.  The public corporation shall
  5  7 analyze each qualified provider's estimate of the cost of
  5  8 design, engineering, installation, maintenance, repairs, debt
  5  9 service, conversions to a different energy or fuel source, and
  5 10 postinstallation project monitoring, data collection, and
  5 11 reporting.  The evaluation shall include a detailed analysis
  5 12 of whether the energy consumed or the operating costs, or
  5 13 both, will be reduced.  Selection of the qualified provider
  5 14 shall, through either a request for proposals process or other
  5 15 purchasing method, constitute selection of the best value
  5 16 based on life cycle cost analysis of the component parts and
  5 17 systems to the public corporation.  The public corporation
  5 18 shall enter into an energy performance=based contract.
  5 19    Sec. 4.  NEW SECTION.  297A.4  AWARD OF GUARANTEED ENERGY
  5 20 COST SAVINGS CONTRACT.
  5 21    1.  A public corporation shall select a qualified provider
  5 22 that best meets the needs of the public corporation based on
  5 23 life cycle cost analysis.  After completing its evaluation of
  5 24 the proposals received pursuant to section 297A.3, the public
  5 25 corporation shall provide public notice of the public meeting
  5 26 at which it proposes to award an energy performance=based
  5 27 contract.  The public notice shall contain the names of the
  5 28 parties to the proposed contract and the purpose of the
  5 29 contract.  The public notice shall be published at least ten
  5 30 days prior to the public meeting.  A public corporation may
  5 31 enter into an energy performance=based contract with a
  5 32 qualified provider if it finds, after evaluating the proposal
  5 33 pursuant to section 297A.3, that the total amount the public
  5 34 corporation would spend on the design, implementation,
  5 35 financing, and performance management of the energy
  6  1 conservation measures or facility technology infrastructure
  6  2 upgrades and modernization measures recommended in the
  6  3 proposal would not exceed the amount to be saved in either
  6  4 energy or operational costs, or both, within a twenty=year
  6  5 period from the date of installation of such measures or
  6  6 upgrades, based on life=cycle costing calculations, if the
  6  7 recommendations in the proposal are followed.
  6  8    2.  A public corporation may enter into a financing
  6  9 agreement as provided in sections 473.19, 473.20, and 473.20A,
  6 10 for the purchase and installation of energy conservation
  6 11 measures or facility technology infrastructure upgrades and
  6 12 modernization measures.  Energy performance=based contracts
  6 13 may extend beyond the fiscal year in which they become
  6 14 effective, and may be automatically renewed annually for up to
  6 15 twenty years.
  6 16    3.  A qualified provider shall be responsible for the
  6 17 measurement and verification of the savings generated by the
  6 18 energy conservation measures or facility technology
  6 19 infrastructure upgrades and modernization measures.  The
  6 20 process to be used for the measurement and verification shall
  6 21 follow the guidelines of the federal energy management
  6 22 program.  A public corporation shall have these savings
  6 23 verified by a qualified independent third party on an annual
  6 24 basis.  The verification shall also include an annual
  6 25 reconciliation of the guaranteed energy cost savings for the
  6 26 life of any financing agreement obligations or until the
  6 27 project is repaid from energy savings.  The cost of this
  6 28 verification shall be a part of the contract with the
  6 29 qualified provider.  The department of natural resources shall
  6 30 establish the qualifications necessary for a business or
  6 31 person to become a qualified independent third party.  A
  6 32 business or person accredited by the national association of
  6 33 energy service companies shall be qualified in Iowa.
  6 34    4.  A selected qualified provider shall provide a one
  6 35 hundred percent performance guarantee bond to the public
  7  1 corporation for the installation and faithful performance of
  7  2 the installed energy conservation measures or facility
  7  3 technology infrastructure upgrades as outlined in the energy
  7  4 performance=based contract.
  7  5    5.  A public corporation has the right to terminate an
  7  6 energy performance=based contract at any time provided that
  7  7 written notice to the qualified provider is provided at least
  7  8 thirty days prior to termination.  All qualified providers
  7  9 shall include clear statements and requirements regarding
  7 10 contract termination as part of the contract documentation.
  7 11 The documentation shall clearly state the options of the
  7 12 public corporation to satisfy the contract early and include
  7 13 all associated costs.  The documentation shall also state the
  7 14 rights of a public corporation under a contract for
  7 15 terminating the contract due to nonperformance, for exercising
  7 16 rights pursuant to the performance guarantee bond, and for
  7 17 listing all costs and responsibilities for payment of any
  7 18 remaining debt associated with energy and operational savings
  7 19 projects already implemented.  The information and associated
  7 20 costs described in this subsection shall be provided to a
  7 21 public corporation before an energy performance=based contract
  7 22 is approved.
  7 23    6.  An energy performance=based contract shall include a
  7 24 written guarantee by a qualified provider that the amount of
  7 25 any actual energy and operational savings shall be guaranteed.
  7 26 The amount must also meet or exceed the total annual contract
  7 27 payments, including financing charges, made by the public
  7 28 corporation over the life of the contract.  A qualified
  7 29 provider shall reimburse a public corporation for any
  7 30 shortfall of guaranteed energy cost savings projected in the
  7 31 contract.  Actual savings documentation shall be reconciled on
  7 32 an annual basis as provided in the contract.  Any savings
  7 33 shortfall shall be made whole by the qualified provider within
  7 34 sixty days.  Excess documented and mutually agreed upon
  7 35 savings may be carried over to future years.  A qualified
  8  1 provider shall provide the public corporation with a one
  8  2 hundred percent performance guarantee bond for installation
  8  3 and retrofit projects.  A qualified provider shall guarantee
  8  4 the savings for the length of the contract and shall also
  8  5 provide the guaranteed performance bonds on an annual basis
  8  6 renewed each year for the term of the contract.  An energy
  8  7 performance=based contract may provide for payments over a
  8  8 period of time, not to exceed twenty years.
  8  9    7.  A public corporation shall not have any state financial
  8 10 assistance or any appropriations or reimbursements reduced as
  8 11 a result of energy and operational savings realized from an
  8 12 energy performance=based contract for the installation of
  8 13 energy conservation measures or facility technology
  8 14 infrastructure upgrades.
  8 15                           EXPLANATION
  8 16    This bill allows public corporations, through a request for
  8 17 proposals process, to enter into energy performance=based
  8 18 contracts with qualified providers for purposes of undertaking
  8 19 one or more energy conservation measures or facility
  8 20 technology infrastructure upgrades.  The bill provides that a
  8 21 public corporation may enter into an energy performance=based
  8 22 contract with a qualified provider if it finds, after
  8 23 evaluating the proposal, that the total amount it would spend
  8 24 on the design, implementation, financing, and performance
  8 25 management of the energy conservation measures or facility
  8 26 technology infrastructure upgrades recommended in the proposal
  8 27 would not exceed the amount to be saved in either energy or
  8 28 operational costs, or both, within a 20=year period from the
  8 29 date of installation, based on life=cycle costing
  8 30 calculations, if the recommendations in the proposal are
  8 31 followed.  The bill provides that a qualified provider shall
  8 32 be responsible for the measurement and verification of the
  8 33 savings generated by the energy conservation measures or
  8 34 facility technology infrastructure upgrades.  The bill
  8 35 provides that a public corporation shall have these savings
  9  1 verified by a qualified independent third party.  The bill
  9  2 provides that a public corporation has the right to terminate
  9  3 an energy performance=based contract at any time provided that
  9  4 written notice to the qualified provider is provided at least
  9  5 30 days prior to termination.
  9  6    The bill provides that an energy performance=based contract
  9  7 shall include a written guarantee by a qualified provider of
  9  8 the amount of any actual energy and operational savings.  The
  9  9 bill provides that a qualified provider shall reimburse a
  9 10 public corporation for any shortfall of guaranteed energy cost
  9 11 performance or payment projected in the contract and that
  9 12 actual savings documentation shall be reconciled on an annual
  9 13 basis as provided in the contract.  The bill provides that a
  9 14 qualified provider shall guarantee the savings for the length
  9 15 of the contract and shall also provide guaranteed performance
  9 16 bonds on an annual basis renewed each year for the term of the
  9 17 contract.  The bill provides that a public corporation shall
  9 18 not have any state financial assistance or any appropriations
  9 19 or reimbursements reduced as a result of energy and
  9 20 operational savings realized from an energy performance=based
  9 21 contract for the installation of energy conservation measures
  9 22 or facility technology infrastructure upgrades.
  9 23 LSB 2098XC 81
  9 24 rn:rj/gg/14