TITLE 31. PUBLIC BUSINESS, BONDS AND OBLIGATIONS
CHAPTER 7. PUBLIC PURCHASES
IN GENERAL
§ 31-7-14. Public contracts of energy
efficiency services
(1) (a) For purposes of this
section, the following words and phrases shall have the meaning ascribed
herein, unless the context clearly indicates otherwise:
(i) "Division"
means the Energy Division of the Mississippi Development Authority.
(ii) "Energy services" or
"energy efficient services" means energy efficiency equipment,
services relating to the installation, operation and maintenance of equipment
and improvements reasonably required to existing or new equipment and existing
or new improvements and facilities including, but not limited to, heating,
ventilation and air conditioning systems, lighting, windows, insulation and
energy management controls, life safety measures that provide long-term,
operating-cost reductions, building operation programs that reduce operating costs,
other energy-conservation-related improvements, including improvements or
equipment related to renewable energy, water and other natural resources
conservation, including accuracy and measurement of
water distribution and/or consumption, and other equipment, services and
improvements providing energy efficiency as determined by the division.
(iii) "Energy performance
contract" means an agreement to provide energy services which include, but
are not limited to, the design, installation, financing and maintenance or
management of the energy systems or equipment in order to improve its energy
efficiency. The energy savings are guaranteed by the performance contractor and
savings from energy, operations, maintenance and other cost-avoidance measures
can be used to repay the cost of the project.
(iv) "Energy services
contract" means an agreement to provide energy services which include, but
are not limited to, the design, installation, financing and maintenance or
management of the energy systems or equipment in order to improve its energy
efficiency. Payments for the contract are not contingent upon the actual
savings realized from the equipment.
(v) "Entity" means the board
of trustees of any public school district, junior college, institution
of higher learning, publicly-owned hospital, state agency or governing
authority of this chapter.
(vi) "Shared savings
contract" means an agreement where the contractor and the entity each
receive a pre-agreed percentage or dollar value of the energy cost savings over
the life of the contract.
(vii) "Reduce operating
costs" means elimination of future expenses or avoidance of future
replacement expenditures as a result of new equipment installed or services
performed. A contract that otherwise satisfies the requirements of this section
shall satisfy the requirements allowing use of an energy performance or shared
savings contract even if the sole expense being eliminated is maintenance
expense.
(b) An entity may enter into a lease, energy services
contract or lease-purchase contracts for energy efficiency equipment, services
relating to the installation, operation and maintenance of equipment or
improvements reasonably required to existing or new equipment and existing or
new improvements and facilities and shall contract in accordance with the
following provisions:
(i) An
entity shall publicly issue requests for proposals, advertised in the same
manner as provided in Section 31-7-13 for seeking competitive sealed bids,
concerning the provision of energy efficiency services relating to the
installation, operation and maintenance of equipment, improvements reasonably
required to existing or new equipment and existing or new improvements and
facilities or the design, installation, ownership, operation and maintenance of
energy efficiency equipment. Those requests for proposals shall contain terms
and conditions relating to submission of proposals, evaluation and selection of
proposals, financial terms, legal responsibilities, and any other matters as
the entity determines to be appropriate for inclusion.
(ii) Upon receiving responses to the
request for proposals, the entity may select the most qualified proposal or
proposals on the basis of experience and qualifications of the proposers, the technical approach, the financial
arrangements, the overall benefits to the entity and
any other relevant factors determined to be appropriate.
(iii) An entity shall negotiate and
enter into contracts with the person, persons, firm or firms submitting the
proposal selected as the most qualified under this section.
(iv) All
contracts must contain the following annual allocation dependency clause: The
continuation of this contract is contingent upon the appropriation of funds to
fulfill the requirements of the contract by the Legislature or other budgeting
authority. If the Legislature or other budgeting authority fails to appropriate
sufficient monies to provide for the continuation of the contract, the contract
shall terminate on the last day of the fiscal year for which appropriations
were made. The termination shall be without penalty or expense to the entity of
any kind whatsoever, except as to the portions of payments for which funds were
appropriated.
(v) The annual rate of interest paid
under any lease-purchase agreement authorized by this section shall not exceed
the maximum interest rate to maturity on general obligation indebtedness
permitted under Section 75-17-101.
(vi) The maximum lease-purchase term
for any equipment acquired under this section shall not exceed the useful life
of that equipment as determined according to the upper limit of the asset
depreciation range (ADR) guidelines for the Class Life Asset Depreciation Range
System established by the Internal Revenue Service under the United States
Internal Revenue Code and the regulations thereunder
as in effect on December 31, 1980, or comparable depreciation guidelines with
respect to any equipment not covered by ADR guidelines.
(vii) This subsection shall, with
respect to the procurement of energy efficiency services and/or equipment,
supersede any contradictory or conflicting provisions of Chapter 7, Title 31,
Mississippi Code of 1972, and other laws with respect to awarding public contracts.
(2) (a) The division may contract with a party selected under this
subsection to provide financing to entities and private "nonprofit"
hospitals, to purchase energy efficiency equipment, services relating to the
installation, operation and maintenance of equipment or improvements reasonably
required to existing or new equipment and existing or new improvements and
facilities or an energy saving performance contract, energy services contract,
or lease-purchase basis. Any energy efficiency lease financing contract entered
into by the division before May 15, 1992, shall be valid and binding when the
contract was entered into under this subsection.
(b) The entities and private "nonprofit"
hospitals that decide to contract for energy efficiency equipment, services
relating to the installation, operation and maintenance of equipment or
improvements reasonably required to existing or new equipment and existing or
new improvements and facilities on a lease, energy services contract or
lease-purchase basis, may request financial assistance from the division.
(c) The provisions of any energy efficiency
lease-purchase agreements authorized under this subsection shall comply with
the requirements of subparagraphs (1)(b)(iv) and (v)
of this section. The term of any energy services performance contract, energy
services contract, lease or lease-purchase agreement for energy efficiency
services and/or equipment entered into under this section shall not exceed
fifteen (15) years.
(d) Any entity or private "nonprofit" hospital
having approval of the division may borrow money in anticipation of entering
into a lease-purchase agreement pursuant to subsection (2)(b)
of this section. Any borrowing may be upon terms and conditions as may be
agreed upon by the borrowing entity and the party advancing interim funds;
however, the principal on any borrowing shall be repaid within a period of time
not to exceed one hundred eighty (180) days. In borrowing money under this
subparagraph, it is not necessary to publish notice of intention to do so or to
secure the consent of the qualified electors, either by election or otherwise.
Any borrowing may be negotiated between the parties and is not required to be
publicly bid, may be evidenced by negotiable notes or lease and shall not be
considered when computing any limitation of indebtedness of the borrowing
entity established by law. The principal, interest and costs of incurring any
borrowing shall not exceed the principal amount of the final contract or
agreement approved by the division, and accepted by the borrowing entity, under
subsection (2)(b) of this section.
(e) This subsection shall, with respect to the
procurement of energy efficiency services and/or equipment, supersede the
provisions of any contradictory or conflicting provisions of Chapter 7, Title
31, Mississippi Code of 1972, and other laws with respect to awarding public
contracts.
(3) All lease-purchase agreements authorized by this section and the
income from those agreements shall be exempt from all taxation within the State
of
(4) (a) An entity may contract for energy
efficiency equipment services relating to the installation, operation or
maintenance of equipment or improvements reasonably required to existing or new
equipment and existing or new improvements and facilities on a shared savings
basis or performance basis.
(b) If an entity decides to enter into a contract for
energy efficiency equipment, services relating to the installation, operation
or maintenance of equipment or improvements reasonably required to existing or
new equipment and existing or new improvements and facilities on a shared
savings basis or performance basis, the entity shall issue a request for
proposals or a request for qualifications, as determined necessary by the
division, in the same manner as prescribed under subsection (1)(b) of this
section. The entity shall notify the division in writing. The final contract
shall be approved by the division.
(c) The terms of any shared savings or performance
contract for efficiency services and/or equipment entered into under this
section may not exceed fifteen (15) years.
(d) The terms of any shared savings or performance
contract entered into under this section must contain a guarantee of savings
clause from the company providing energy efficiency equipment services relating
to the installation, operation and maintenance of equipment or improvements
reasonably required to existing or new equipment and existing or new improvements
and facilities.
(5) By September 1 of each year, each entity that receives financial
assistance through the energy efficiency lease program shall annually report to
the division its energy usage by meter in dollars and consumption by fuel type
for the previous fiscal year.
(6) The contract may be construed to provide flexibility to public
agencies in structuring agreements entered into hereunder so that economic
benefits may be maximized.