Energy performance contracting-2.

WORKING DRAFT

ORIGINAL HOUSE

BILL

NO.
0156

ENROLLED ACT NO. 73, HOUSE OF REPRESENTATIVES

SIXTIETH LEGISLATURE OF THE STATE OF
WYOMING
2009 GENERAL SESSION

AN ACT relating to economic development; providing for the support, development and implementation of energy performance contract projects; providing for the use of energy efficient measures for local governmental entities; requiring a report; and providing for an effective date.

Be It Enacted by the Legislature of the State of
Wyoming
:

Section 1.

W.S. 9
‑
12
‑
1201
through
9
‑
12
‑
1203 are created to read:

ARTICLE 12
WYOMING
ENERGY PERFORMANCE PROGRAM

9
‑
12
‑
1201.

Definitions
.

(a)

As used in this article:

(i)

"
Agenc
y
"
means
a
branch
, agency, department
, board
, instrumentality
or institution
of the state of Wyoming, a
count
y
,
a
municipal corporation,
a
school district,
a
community college district,
the University of Wyoming,
the joint business council of the Eastern Shoshone and Northern Arapaho Indian tribes, the business council of the Eastern Shoshone Indian tribe, the business council of the Northern Arapaho Indian tribe,
a
joint powers board formed pursuant to this act
or a
special district specifically involved in providing facilities or functions enumerated in W.S. 16
‑
1
‑
104(c);

(ii)

"
Energy conservation measure
"

means an energy study, audit, improvement or equipment that is designed to provide energy
, water
and operational cost savings at least equivalent to the amount expended by a
facility owner
for such energy study, audit, improvement or equipment over a period of not more than twenty (20) years after the date such improvement or equipment is i
nstalled or becomes operational;

(iii)

"
Energy
p
erformance
c
ontract
"
means the contract

that allows
a
facility owner to accomplish energy or water efficiency projects without upfront capital costs or capital appropriations
. An energy performance contract shall not be considered to be a contract for public improvement pursuant to W.S. 15
‑
1
‑
113;

(iv)

"
Energy
s
ervice
s

c
ompany
"
means the contractor

not organized under the auspices of a utility regulated by the public service commission

with demonstrated technical, operational, financial and managerial capabi
lities to design and implement e
nergy
c
onservation
m
easures and the ability to secure necessary financial measures to ensure related guarantees for operational cost saving
s

and who is
responsible for
the
audit, design, implementation, measurement, verification and guarantee of savings for individual p
rojects;

(v)

"
Facility o
wner
"
means a
n agency
or group of
agencies, a p
ublic
hospital or
other
public e
ntity
responsible
for
an individual facility or group of facilities
;

(vi)

"
Investment
g
rade
e
nergy
a
udit
"
means the detailed engineering investigation and report of a facility
'
s current energy and water consuming equipment inventory, co
ndition, operation, maintenance
and performance, energy baseline, potential energy and water efficiency upgrades, life cycle costs and risks for future performance that provides the justification for the ener
gy performance contract project;

(vii)

"
Wyoming

e
nergy
c
onservation
i
mprovement
p
rogram
"
means the
Wyoming

b
usiness
c
ouncil
s
tate
e
nergy
o
ffice program designed to enable and support development and implementation of energy
performance contract projects.

9
‑
12
‑
120
2
.

Energy
performance c
ont
ract
in
g.

The council shall establish a
Wyoming
energy conservation improvement program which provides
support development and implementation of energy
performance contract projects to facility owners voluntarily participating in the program. In order to participate in the program, facility owners and energy services companies shall be subject to the provisions of this article and rules adopted pursuant to this article.

9
‑
12
‑
120
3
.

Energy
performance c
ont
ract
in
g.

(a)

Upon receipt of a request from a facility owner, t
he
Wyoming
business council shall provide the facility owner with a list of energy service companies

interested in providing services to the facility owner
and
qualified by the
Wyoming
business council to participate in the
Wyoming

energy conservation i
mprovement
p
rogram
.

(b)

The
e
nergy
s
ervices
c
ompany
participating in the
Wyoming
energy conservation improvement program

shall provide an
i
nvestment
grade a
udit showing the estimated energy and operational cost savings that would result from the proposed energy conservation measures. Before executing any contract or lease

purchase agreement under
sub
section
(c) of this section,
the
e
nergy
s
ervice
s

c
ompany shall provide the
f
acility
o
wner

with plans for the proposed energy conservation measures prepared by an engineer licensed to practice in
Wyoming
.

(c)

Notwithstanding W.S. 15
‑
1
‑
113 and s
ubject to the provisions of subsection (e) of this s
ection
, a f
acility
o
wner may enter into a
n

installment payment
contract or lease

purchase agreement for an energy or water conservation measure which meets the criteria of this section.
Any documents related to n
egotiations entered into pursuant to this section with individual
e
nergy
s
ervice
s

c
ompanies
by an agency or facility owner
shall be
considered trade secrets pursuant to
the provisions of the
Wyoming Public Records Act, W.S. 16
‑
4
‑
201 through 16
‑
4
‑
205.
After a
contract
has been executed
by an agency
, the
contrac
t and all proposals from energy service companies shall be open records available for public inspection in accordance with the
Wyoming Public R
ecords
A
ct
.

(d)

E
nergy performance
contracts entered into pursuant to the
Wyoming
energy conservation improvement program
shall require the energy services company to provide to the f
acility
o
wner
an annual reconciliation of the guaranteed energy savings. If the reconciliation reveals a shortfall in annual energy savings, the energy services company shall be liable for compensation to the f
acility
o
wner
for such shortfall under the provisions of the energy performance contract. If the reconciliation reveals an excess in annual energy savings, the excess savings shall be retained by the facility o
wner
and shall not be used to cover potential energy savings shortages in subsequent contract years.

(e)

An energy performance contract
entered into pursuant to the Wyoming energy conservation improvement program
may provide for financing, including tax exempt financing, by a third party. The contract for third party financing may be separate from the energy performance contract. A separate contract for third party financing shall include a provision that the third party financier shall not be granted rights or privileges that exceed the rights and privileges available to the energy services company.

(f)

The
Wyoming

b
usiness
c
ouncil

may provide support under the
Wyoming

e
nergy
c
onservation
i
mprovement
p
rogram as requested by
f
acility
o
wner
s
for purposes of this section. The
Wyoming

b
usiness
c
ouncil
state energy o
ffice may fix, charge and collect reasonable fees for any administrative support and resources or other se
rvices provided by the
Wyoming
b
usiness
c
ouncil
pursuant to
this subsection.

(g)

If the
f
acility
o
wner
fails to appropriate or receive an appropriation of money for
a periodic payment due for improvements made through
an
e
nergy
p
erformance
c
ontract, a
ny
security interest in any proper
ty created pursuant to the energy p
erformance
c
ontract,
may be enforced by the
holder of such a security interest against t
he
property.

(h)

The term of an
e
nergy
p
erformance
c
ontract shall not exceed
twenty (2
0
)
years after the date on which the work required by the
energy p
erformance
c
ontract to implement
all e
nergy
c
onservation
m
easure
s

is
completed.

(j)

The
Wyoming
business council
shall submit to the joint minerals, business and economic development interim committee by
Octo
ber 1, a
n annual
report
on the energy performance contracting performed under the
Wyoming
energy conservation improvement program. The report shall include the number of applications submitted, the number of facility owners, the number of energy performance contracts, the results of the investment grade energy audits
and
the results of the energy performance contracts.

Section 2
.

W.S. 9
‑
12
‑
102(a)(viii)
and 15
‑
1
‑
113 by creating a new subsection (s) are
amended to read:

9
‑
12
‑
102.

Definitions.

(a)

As used in this act, the following terms have the following meanings, except where the context clearly indicates otherwise:

(viii)

"
This act
"
means W.S. 9
‑
12
‑
101 through
9
‑
12
‑
905

9
‑
12
‑
1203
.

15
‑
1
‑
113.

Contracts for public improvements.

(s)

As used in this section, a contract for public improvement shall not include an arrangement in which a municipality can accomplish an energy or water efficiency project without upfront capital costs
or capital appropriations
by compensating an energy or water efficiency contractor over time from guaranteed savings in energy or water costs that result from the project.

Section 3.

This act is effective July 1, 2009.

(END)

Speaker of the House

President of the Senate

Governor

TIME APPROVED: _________

DATE APPROVED: _________

I hereby certify that this act originated in the House.

Chief Clerk

1