ENROLLED
COMMITTEE SUBSTITUTE
FOR
H. B. 4028
(By Delegates Fleischauer, Marshall,
Beach and Shook)
[Passed March 5, 2008; in effect ninety days from passage.]
AN ACT to amend the code of West Virginia, 1931, as amended, by
adding thereto a new section, designated º7-1-3oo; and to
amend said code by adding thereto a new section designated º8-
12-5e, all relating to authorizing counties and municipalities
to enter into energy-savings contracts.
Be it enacted by the Legislature of West Virginia:
That the Code of West Virginia, 1931, as amended, be amended
by adding thereto a new section designated º7-1-3oo; and that said
code be amended by adding thereto a new section, designated º8-12-
5e, all to read as follows:
CHAPTER 7. COUNTY COMMISSIONS AND OFFICERS.
ARTICLE 1. COUNTY COMMISSIONS GENERALLY.
º7-1-3oo. Authority to enter into energy-savings contracts.
(a) As used in this section:
(1) "Energy-conservation measures" means goods or services, or
both, to reduce energy consumption operating costs of county facilities. They include, but are not limited to, installation of
one or more of the following:
(A) Insulation of a building structure and systems within a
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
modifications that reduce energy consumption;
(C) Automatic energy control systems;
(D) Heating, ventilating or air conditioning systems,
including modifications or replacements;
(E) Replacement or modification of lighting fixtures to
increase energy efficiency;
(F) Energy recovery systems;
(G) Cogeneration systems that produce steam or another form of
energy for use by any agency in a building or complex of buildings
owned by the county; or
(H) Energy-conservation maintenance measures that provide
long-term operating cost reductions of the building's present cost
of operation.
(2) "Energy-savings contract" means a performance-based
contract for the evaluation and recommendation of energy operations
conservation measures and for implementation of one or more energy-
conservation measures.
(3) "Qualified provider" means a person, firm or corporation
experienced in the design, implementation and installation of
energy-conservation measures.
(b) Counties are authorized to enter into performance-based
contracts with qualified providers of energy-conservation measures
for the purpose of significantly reducing energy operating costs of
county owned buildings, subject to the requirements of this
section.
(c) Before entering into a contract or before the installation
of equipment, modifications or remodeling to be furnished under a
contract, the qualified provider shall first issue a proposal
summarizing the scope of work to be performed. A proposal must
contain estimates of all costs of installation, modifications or
remodeling, including the costs of design, engineering,
installation, maintenance, repairs or debt service, as well as
estimates of the amounts by which energy operating costs will be
reduced. If the county finds, after receiving the proposal, that
the proposal includes one or more energy-conservation measures, the
installation of which is guaranteed to result in a net savings of
a minimum of five percent of the then current energy operating
costs which savings will, at a minimum, satisfy any debt service
required, the county may enter into a contract with the provider
pursuant to this section.
(d) An energy-savings contract must include the following:
(1) A guarantee of a specific minimum net percentage amount of
at least five percent of energy operating costs each year over the
term of the contract that the county will save;
(2) A statement of all costs of energy-conservation measures,
including the costs of design, engineering, installation,
maintenance, repairs and operations; and
(3) A provision that payments, except obligations upon
termination of the contract before its expiration, are to be made
over time.
(e) A county may supplement its payments with federal, state
or local funds to reduce the annual cost or to lower the initial
amount to be financed.
(f) Any energy-savings contract entered into for the purpose
of achieving one or more energy-conservation measures, as
authorized by this section, shall be considered a "public
improvement" within the meaning of the provisions of articles one-c
and five-a, chapter twenty-one of this code. As such, energy-
savings contracts entered into pursuant to this section are subject
to competitive bidding requirements and other requirements of
section twenty-two, article twenty of this chapter.
(g) An energy-savings contract may extend beyond the fiscal
year in which it first becomes effective: Provided, That such a
contract may not exceed a fifteen-year term: Provided, however,
That the long-term contract will be void unless the agreement
provides that the county shall have the option during each fiscal
year of the contract to terminate the agreement.
(h) Counties may enter into a "lease with an option to
purchase" contract for the purchase and installation of
energy-conservation measures if the term of the lease does not
exceed fifteen years and the lease contract includes the provisions
contained in subsection (g) of this section and meets federal tax
requirements for tax-exempt municipal leasing or long-term
financing.
(i) The county
may include in its annual budget for each
fiscal year any amounts payable under long-term energy-savings
contracts during that fiscal year.
CHAPTER 8. MUNICIPAL CORPORATIONS.
ARTICLE 12. GENERAL AND SPECIFIC POWERS, DUTIES AND ALLIED
RELATIONS OF MUNICIPALITIES, GOVERNING BODIES AND
MUNICIPAL OFFICERS AND EMPLOYEES; SUITS AGAINST
MUNICIPALITIES.
8-12-5e. Authority to enter into energy-savings contracts.
(a) As used in this section:
(1) "Energy-conservation measures" means goods or services, or
both, to reduce energy consumption operating costs of municipality
facilities. They include, but are not limited to, installation of
one or more of the following:
(A) Insulation of a building structure and systems within a
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
modifications that reduce energy consumption;
(C) Automatic energy control systems;
(D) Heating, ventilating or air conditioning systems,
including modifications or replacements;
(E) Replacement or modification of lighting fixtures to
increase energy efficiency;
(F) Energy recovery systems;
(G) Cogeneration systems that produce steam or another form of
energy for use by any agency in a building or complex of buildings
owned by the municipality; or
(H) Energy-conservation maintenance measures that provide
long-term operating cost reductions of the building's present cost
of operation.
(2) "Energy-savings contract" means a performance-based
contract for the evaluation and recommendation of energy operations
conservation measures and for implementation of one or more energy-
conservation measures.
(3) "Qualified provider" means a person, firm or corporation
experienced in the design, implementation and installation of
energy-conservation measures.
(b) Municipalities are authorized to enter into
performance-based contracts with qualified providers of
energy-conservation measures for the purpose of significantly
reducing energy operating costs of municipality buildings, subject
to the requirements of this section.
(c) Before entering into a contract or before the installation
of equipment, modifications or remodeling to be furnished under a
contract, the qualified provider shall first issue a proposal
summarizing the scope of work to be performed. A proposal must
contain estimates of all costs of installation, modifications or
remodeling, including the costs of design, engineering,
installation, maintenance, repairs or debt service, as well as
estimates of the amounts by which energy operating costs will be
reduced. If the municipality finds, after receiving the proposal,
that the proposal includes one or more energy-conservation
measures, the installation of which is guaranteed to result in a
net savings of a minimum of five percent of the then current energy
operating costs which savings will, at a minimum, satisfy any debt
service required, the municipality may enter into a contract with
the provider pursuant to this section.
(d) An energy-savings contract must include the following:
(1) A guarantee of a specific minimum net percentage amount of
at least five percent of energy operating costs each year over the
term of the contract that the municipality will save;
(2) A statement of all costs of energy-conservation measures,
including the costs of design, engineering, installation,
maintenance, repairs and operations; and
(3) A provision that payments, except obligations upon
termination of the contract before its expiration, are to be made
over time.
(e) A municipality may supplement its payments with federal,
state or local funds to reduce the annual cost or to lower the
initial amount to be financed.
(f) Any energy-savings contract entered into for the purpose
of achieving one or more energy-conservation measures, as
authorized by this section, shall be subject to a competitive
bidding process as provided by municipal ordinance enacted pursuant
to section ten-b, article twelve of this chapter.
(g) An energy-savings contract may extend beyond the fiscal
year in which it first becomes effective: Provided, That such a
contract may not exceed a fifteen-year term: Provided, however,
That the long-term contract will be void unless the agreement
provides that the municipality shall have the option during each
fiscal year of the contract to terminate the agreement.
(h) Municipalities
may enter into a "lease with an option to
purchase" contract for the purchase and installation of
energy-conservation measures if the term of the lease does not
exceed fifteen years and the lease contract includes the provisions
contained in subsection (f) of this section and meets federal tax
requirements for tax-exempt municipal leasing or long-term
financing.
(i) The municipality
may include in its annual budget for each
fiscal year any amounts payable under long-term energy-savings
contracts during that fiscal year.