[Rev. 11/21/2013 10:53:19
AM--2013]
CHAPTER 333A - STATE PERFORMANCE CONTRACTS
FOR OPERATING COST-SAVINGS MEASURES
NRS 333A.010 Definitions.
NRS 333A.015 “Board”
defined.
NRS 333A.020 “Building”
defined.
NRS 333A.030 “Operating
cost savings” defined.
NRS 333A.040 “Operating
cost-savings measure” defined.
NRS 333A.050 “Performance
contract” defined.
NRS 333A.060 “Qualified
service company” defined.
NRS 333A.070 “Using
agency” defined.
NRS 333A.075 Authority
of using agency to enter into performance contract; purpose of performance
contract; compliance with applicable building codes.
NRS 333A.080 Procedure
for determination of qualified service companies by State Public Works
Division; request for qualifications; adoption of criteria; factors;
compilation of list of qualified service companies.
NRS 333A.082 Notification
to qualified service companies; selection of qualified service company;
financial-grade audit required.
NRS 333A.084 Requirements
for comprehensive audits.
NRS 333A.086 Third-party
consultants.
NRS 333A.090 Financing
and structure of performance contract; minimum annual operating cost savings
from performance contract; change orders.
NRS 333A.0902 Installment-purchase
and lease-purchase contracts: Security interests; certificates of
participation; lease of property; other agreements, contracts or arrangements.
NRS 333A.0904 Installment-purchase
and lease-purchase contracts: Property that is subject of contract is exempt
from ad valorem property taxation under certain circumstances and is to be
deemed property of State or using agency for purposes of statutory limits on
damages.
NRS 333A.0906 Refunding
of obligations: Resolution; purposes.
NRS 333A.0908 Refunding
of obligations: Disposition of proceeds; incidental costs; accrued interest and
premium.
NRS 333A.091 Proceeds
of refunding obligations in escrow or trust: Investment; security; sufficient
amount; purchaser not responsible for application of proceeds.
NRS 333A.0912 Issuance
of refunding and other obligations separately or in combination.
NRS 333A.0914 Other
statutory provisions applicable to refunding obligations.
NRS 333A.0916 Conditions
for refunding obligations.
NRS 333A.0918 Conclusive
determination of using agency that statutory limitations have been met.
NRS 333A.092 Recital
in resolution as conclusive evidence of validity of obligation.
NRS 333A.100 Indebtedness
of State under contract; term of contracts.
NRS 333A.110 Period
over which payments become due.
NRS 333A.120 Prevailing
wage requirement.
NRS 333A.130 Monitoring
of cost savings attributable to operating cost-savings measures.
NRS 333A.140 Information
concerning performance contract provided to Office of Energy.
NRS 333A.150 Financial
mechanisms to guarantee operational cost savings are realized.
_________
NRS 333A.010 Definitions. As
used in this chapter, unless the context otherwise requires, the words and
terms defined in NRS 333A.015 to 333A.070, inclusive, have the meanings ascribed to
them in those sections.
(Added to NRS by 2003, 3054; A 2005, 2901)
NRS 333A.015 “Board” defined. “Board”
means:
1. If the using agency that enters into a
performance contract is the Nevada System of Higher Education, the Board of
Regents of the University of Nevada; or
2. For any other using agency that enters
into a performance contract, the State Board of Examiners.
(Added to NRS by 2005, 2895)
NRS 333A.020 “Building” defined. “Building”
means any structure, building or facility, including any equipment, furnishings
or appliances within the structure, building or facility, that is owned or
operated by a using agency. The term includes, without limitation, occupied and
unoccupied structures, buildings and facilities, and any other improvements
owned or operated by a using agency that incur operating costs.
(Added to NRS by 2003, 3054)—(Substituted
in revision for NRS 333.520)
NRS 333A.030 “Operating cost savings” defined. “Operating
cost savings” means any expenses that are eliminated or avoided on a long-term
basis as a result of the installation or modification of equipment, or services
performed by a qualified service company. The term does not include any savings
that are realized solely because of a shift in the cost of personnel or other
similar short-term cost savings.
(Added to NRS by 2003, 3054)—(Substituted
in revision for NRS 333.530)
NRS 333A.040 “Operating cost-savings measure” defined. “Operating cost-savings measure” means any
improvement, repair or alteration to a building, or any equipment, fixture or
furnishing to be added or used in a building that is designed to reduce operating
costs, including those costs related to electrical energy and demand, thermal
energy, water consumption, waste disposal and contract-labor costs, and
increase the operating efficiency of the building for the appointed functions
that are cost-effective. The term includes, without limitation:
1. Procurement of low-cost energy
supplies, including electricity and natural gas.
2. Procurement of cost savings as a result
of outsourcing energy needs for electrical power, heating and cooling.
3. Operational or maintenance labor
savings resulting from reduced costs for maintenance contracts as provided
through reduction of required maintenance or operating tasks, including,
without limitation, replacement of filters and lighting products, and equipment
failures.
4. Investment in equipment, products and
materials, and strategies for building operation, or any combination thereof,
designed to reduce energy and other utility expenses, including, without
limitation:
(a) Costs for materials and labor required to
replace old equipment with new, more efficient equipment.
(b) Storm windows or doors, caulking or weather
stripping, multiglazed windows or doors, heat-absorbing or heat-reflective
glazed or coated windows or doors, reductions in glass area, and other
modifications to windows and doors that will reduce energy consumption.
(c) Automated or computerized energy control
systems.
(d) Replacement of, or modifications to, heating,
ventilation or air-conditioning systems.
(e) Replacement of, or modifications to, lighting
fixtures.
(f) Improvements to the indoor air quality of a
building that conform to all requirements of an applicable building code.
(g) Energy recovery systems.
(h) Systems for combined cooling, heating and
power that produce steam or other forms of energy, for use primarily within the
building or a complex of buildings.
(i) Installation of, or modifications to,
existing systems for daylighting, including lighting control systems.
(j) Installation of, or modification to,
technologies that use renewable or alternative energy sources.
(k) Programs relating to building operation that
reduce operating costs, including, without limitation, computerized programs,
training and other similar activities.
(l) Programs for improvement of steam traps to
reduce operating costs.
(m) Devices that reduce water consumption in
buildings, for lawns and for other irrigation applications.
(n) Any additional improvements to building
infrastructures that produce energy and operating cost savings, significantly
reduce energy consumption or increase the operating efficiency of the buildings
for their appointed functions, provided that such improvements comply with
applicable building codes.
(o) Trash compaction and waste minimization.
5. Investment in educational programs
relating to occupational behavior that are designed to reduce the consumption
of energy or water, or both, and the generation of waste.
(Added to NRS by 2003, 3054)—(Substituted
in revision for NRS 333.540)
NRS 333A.050 “Performance contract” defined. “Performance
contract” means a contract between a using agency and a qualified service
company for the evaluation, recommendation and implementation of one or more
operating cost-savings measures.
(Added to NRS by 2003, 3055)—(Substituted
in revision for NRS 333.550)
NRS 333A.060 “Qualified service company” defined. “Qualified
service company” means a person with a record of established projects or a
person with demonstrated technical, operational, financial and managerial
capabilities to design and carry out operating cost-savings measures and other
similar building improvements, and who has the ability to secure necessary
financial measures to ensure related guarantees for operating cost savings.
(Added to NRS by 2003, 3055)—(Substituted
in revision for NRS 333.560)
NRS 333A.070 “Using agency” defined. “Using
agency” means all officers, departments, institutions, boards, commissions and
other agencies in the Executive Department of the State Government which derive
their support from public money in whole or in part, whether the money is
provided by the State of Nevada, received from the Federal Government or any
branch, bureau or agency thereof, or derived from private or other sources. The
term includes the Nevada System of Higher Education, but does not include the
Nevada Rural Housing Authority, local governments as defined in NRS 354.474, conservation districts and irrigation
districts.
(Added to NRS by 2003, 3055)
NRS 333A.075 Authority of using agency to enter into performance contract;
purpose of performance contract; compliance with applicable building codes.
1. Notwithstanding any provision of this
chapter, chapter 333 and 338 of NRS to the contrary, a using agency may
enter into a performance contract with a qualified service company for the
purchase and installation of one or more operating cost-savings measures to
reduce costs related to energy, water and the disposal of waste, and related
labor costs.
2. Any operating cost-savings measures put
into place as a result of a performance contract must comply with all
applicable building codes.
(Added to NRS by 2005, 2895)
NRS 333A.080 Procedure for determination of qualified service companies by
State Public Works Division; request for qualifications; adoption of criteria;
factors; compilation of list of qualified service companies.
1. The State Public Works Division of the
Department of Administration shall determine those companies that satisfy the
requirements of qualified service companies for the purposes of this chapter.
In making such a determination, the State Public Works Division of the
Department of Administration shall enlist the assistance of the staffs of the
Office of Energy, the Buildings and Grounds Section of the State Public Works
Division of the Department of Administration and the Purchasing Division of the
Department of Administration. The State Public Works Division of the Department
of Administration shall prepare and issue a request for qualifications to not
less than three potential qualified service companies.
2. In sending out a request for
qualifications, the State Public Works Division of the Department of
Administration:
(a) Shall attempt to identify at least one
potential qualified service company located within this State; and
(b) May consider whether and to what extent the
companies to which the request for qualifications will be sent will use local
contractors.
3. The State Public Works Division of the
Department of Administration shall adopt, by regulation, criteria to determine
those companies that satisfy the requirements of qualified service companies.
The criteria for evaluation must include, without limitation, the following
areas as substantive factors to assess the capability of such companies:
(a) Design;
(b) Engineering;
(c) Installation;
(d) Maintenance and repairs associated with
performance contracts;
(e) Experience in conversions to different
sources of energy or fuel and other services related to operating cost-savings
measures provided that is done in association with a comprehensive energy,
water or waste disposal cost-savings retrofit;
(f) Monitoring projects after the projects are
installed;
(g) Data collection and reporting of savings;
(h) Overall project experience and
qualifications;
(i) Management capability;
(j) Ability to access long-term financing;
(k) Experience with projects of similar size and
scope; and
(l) Such other factors determined by the State
Public Works Division of the Department of Administration to be relevant and
appropriate to the ability of a company to perform the projects.
Ê In
determining whether a company satisfies the requirements of a qualified service
company, the State Public Works Division of the Department of Administration
shall also consider whether the company holds the appropriate licenses required
for the design, engineering and construction which would be completed pursuant
to a performance contract.
4. The State Public Works Division of the
Department of Administration shall compile a list of those companies that it
determines satisfy the requirements of qualified service companies.
(Added to NRS by 2003, 3056; A 2005, 2901; 2009, 1405;
2011, 2078)
NRS 333A.082 Notification to qualified service companies; selection of
qualified service company; financial-grade audit required.
1. The Purchasing Division of the
Department of Administration shall work directly with any using agency
interested in entering into a performance contract, using the list of qualified
service companies compiled by the State Public Works Division of the Department
of Administration pursuant to NRS 333A.080. The
Purchasing Division, in conjunction with the using agency, shall ensure that
each appropriate qualified service company is notified of the using agency’s
interest in entering into a performance contract and coordinate an opportunity
for each such qualified service company to:
(a) Visit the site pertaining to which the using
agency wishes to enter into a performance contract;
(b) Perform a comprehensive audit in the manner
prescribed in NRS 333A.084; and
(c) Submit a proposal, including, without
limitation, the comprehensive audit, and make a related presentation to the
using agency for all operating cost-savings measures that the qualified service
company determines would be practicable to implement.
2. The using agency shall:
(a) Evaluate the proposals and presentations made
pursuant to subsection 1;
(b) Evaluate the financial stability of the
qualified service companies that made proposals and presentations pursuant to
subsection 1 based on the financial statements and ratings of the qualified
service companies; and
(c) Select a qualified service company,
Ê pursuant to
the provisions of this chapter and any regulations adopted pursuant thereto,
for evaluating and awarding contracts.
3. A qualified service company selected by
a using agency pursuant to subsection 2 shall prepare a financial-grade
operational audit, which must include, without limitation:
(a) A detailed explanation of the operating cost
savings that will result from the performance contract; and
(b) A comparison of the costs of implementing the
operating cost-savings measures to the operating cost savings that are
anticipated as a result of the performance contract.
4. Except as otherwise provided in this
subsection, the financial-grade operational audit prepared by the qualified
service company pursuant to subsection 3 becomes, upon acceptance, a part of
the final performance contract and the costs incurred by the qualified service company
in preparing the financial-grade operational audit shall be deemed to be part
of the performance contract. If, after the financial-grade operational audit is
prepared, the using agency decides not to execute the performance contract, the
using agency shall pay the qualified service company that prepared the
financial-grade operational audit the costs incurred by the qualified service
company in preparing the financial-grade operational audit, if the Legislature
has specifically appropriated money for that purpose. An appropriation by the
Legislature for the purchase and installation of an operating cost-savings
measure creates no presumption that the using agency for which the money was
appropriated is required to enter into such a performance contract.
(Added to NRS by 2005, 2895)
NRS 333A.084 Requirements for comprehensive audits.
1. Each comprehensive audit performed
pursuant to paragraph (b) of subsection 1 of NRS
333A.082 must include, without limitation:
(a) An assessment of any operating cost-savings
measure that might be implemented within the building of the using agency,
including, without limitation, any operating cost-savings measure specifically
requested by the using agency;
(b) An estimate of the costs associated with
implementing an operating cost-savings measure described in paragraph (a);
(c) A comparison of the energy and water
consumption in the building of the using agency to the energy and water
consumption in similar buildings; and
(d) A report that compares the current pattern of
the costs to the using agency associated with energy consumption, water
consumption and the disposal of waste, and related labor costs, to the
projected costs if the using agency implements operating cost-savings measures.
2. A comprehensive audit must be based on:
(a) A review and analysis of the historical
energy and water usage of the using agency; and
(b) Surveys, plans, specifications or drawings
that provide details of the structure or design of the building of the using
agency.
3. The using agency shall provide
to each qualified service company that intends to perform a comprehensive audit
the records of the energy and water consumption of the building.
(Added to NRS by 2005, 2896)
NRS 333A.086 Third-party consultants.
1. A using agency that selects a qualified
service company pursuant to NRS 333A.082 shall
retain the professional services of a third-party consultant to work on behalf
of the using agency in coordination with the qualified service company.
2. A third-party consultant retained
pursuant to subsection 1 must be certified by the Association of Energy
Engineers as a “Certified Energy Manager” or hold similar credentials from a
comparable nationally recognized organization.
3. The duties of a third-party consultant
retained pursuant to subsection 1 may include, without limitation:
(a) Assisting the using agency in reviewing the
operating cost-savings measures proposed by the qualified service company;
(b) Overseeing the construction of the operating
cost-savings measures; and
(c) Monitoring the operating cost savings after
the construction of the operating cost-savings measures is completed.
4. The Purchasing Division of the
Department of Administration may procure sufficient funding from the qualified
service company, through negotiation, to pay for the third-party consultant out
of the proceeds relating to the performance contract. A qualified service
company shall not pay a third-party consultant directly for the work described
in subsection 3.
5. A third-party consultant retained
pursuant to subsection 1 may recommend that the using agency not execute the
performance contract. If the using agency does not execute the performance
contract, the using agency shall pay the third-party consultant a prenegotiated
fee based on the work completed by the third-party consultant.
(Added to NRS by 2005, 2897)
NRS 333A.090 Financing and structure of performance contract; minimum annual
operating cost savings from performance contract; change orders.
1. Any financing related to a performance
contract must be approved by the Board.
2. A performance contract may be financed
through:
(a) A person other than the qualified service
company.
(b) An installment-purchase contract or
lease-purchase contract. Such an installment-purchase contract or
lease-purchase contract is not subject to:
(1) The provisions of NRS 353.500 to 353.630, inclusive.
(2) Any requirement of competitive bidding
or other restriction imposed on the procedure for the awarding of contracts or
the procurement of goods or services.
3. A performance contract may be
structured as:
(a) A performance contract that guarantees
operating cost savings, which includes, without limitation, the design and
installation of equipment, the operation and maintenance, if applicable, of any
of the operating cost-savings measures and the guaranteed annual savings which
must meet or exceed the total annual contract payments to be made by the using
agency, including, without limitation, any financing charges to be incurred by
the using agency over the life of the performance contract. The using agency
may require that these savings be verified:
(1) When the work required by the
performance contract is completed and 1 year after that work is completed; or
(2) Over a sufficient period that
demonstrates savings.
(b) A shared-savings contract which includes
provisions mutually agreed upon by the using agency and qualified service
company as to the negotiated rate of payments based upon operating cost savings
and a stipulated maximum consumption level of energy or water, or both energy
and water, over the life of the contract.
4. The annual operating cost savings
resulting from a performance contract must meet or exceed the total annual
contract payments to be made by the using agency, including any financing
charges to be incurred by the using agency over the life of the performance
contract.
5. A change order to a performance
contract executed pursuant to NRS 333A.080 may not
be approved by the using agency if the cost of the change order would cause the
annual operating cost savings resulting from the performance contract to be
less than the total annual contract payments to be made by the using agency,
including any financing charges to be incurred by the using agency over the
life of the performance contract, unless approval of the change order is more
economically feasible than termination of the operating cost-savings measure.
(Added to NRS by 2003, 3058; A 2005, 2903; 2007, 926)
NRS 333A.0902 Installment-purchase and lease-purchase contracts: Security
interests; certificates of participation; lease of property; other agreements,
contracts or arrangements. In
connection with any installment-purchase contract or lease-purchase contract
entered into to finance a performance contract, the Board may:
1. Grant a security interest in any
property that is the subject of the installment-purchase contract or
lease-purchase contract and execute an instrument to evidence such a security
interest, including, without limitation, a deed of trust, a leasehold interest
deed of trust, a mortgage or a financing agreement.
2. Offer certificates of participation.
3. If the installment-purchase contract or
lease-purchase contract involves an improvement to property owned by the State
of Nevada or the using agency, enter into a lease of the property to which the
improvement will be made and any property that is adjacent to that property if
the installment-purchase contract or lease-purchase contract:
(a) Except as otherwise provided in NRS 333A.0916, has a term of not more than 15 years
beyond the date on which construction of the work required by the
installment-purchase contract or lease-purchase contract is completed; and
(b) Provides for rental payments that approximate
the fair market rental of the property before the improvement is made, as
determined by the Board at the time the parties enter into the lease, which
must be paid if the installment-purchase contract or lease-purchase contract
terminates before the expiration of the lease because the Legislature fails to
appropriate money for payments due pursuant to the installment-purchase
contract or lease-purchase contract.
Ê A lease
entered into pursuant to this subsection may provide for nominal rental
payments to be paid pursuant to the lease before the installment-purchase
contract or lease-purchase contract terminates.
4. Enter into any other agreement,
contract or arrangement that the Board determines would be beneficial to the
purpose of the installment-purchase contract or lease-purchase contract,
including, without limitation, contracts for professional services, trust
indentures, paying agent agreements and contracts of insurance.
(Added to NRS by 2005, 2897)
NRS 333A.0904 Installment-purchase and lease-purchase contracts: Property that
is subject of contract is exempt from ad valorem property taxation under
certain circumstances and is to be deemed property of State or using agency for
purposes of statutory limits on damages. For
the period during which an installment-purchase contract or lease-purchase
contract that was entered into to finance a performance contract is in effect,
the property that is the subject of the installment-purchase contract or
lease-purchase contract:
1. Is exempt from ad valorem property
taxation by this State and its political subdivisions if:
(a) An improvement is being constructed on the
property pursuant to the installment-purchase contract or lease-purchase
contract; or
(b) This State or a using agency is in possession
of the property.
2. Shall be deemed to be the property of
this State or the using agency that is a party to the installment-purchase
contract or lease-purchase contract for the purposes of statutory limits on
damages that may be awarded against this State, including, without limitation,
the limits in chapter 41 of NRS, with respect
to any action or claim, including a claim for civil damages, that arises from
or is related to the property and is brought by a person who is not a party to
the installment-purchase contract or lease-purchase contract if:
(a) An improvement is being constructed on the
property pursuant to the installment-purchase contract or lease-purchase
contract; or
(b) This State or the using agency is in possession
of the property.
(Added to NRS by 2005, 2898)
NRS 333A.0906 Refunding of obligations: Resolution; purposes. Any obligations of this State issued in
accordance with this chapter may be refunded on behalf of the State by the
Board without the necessity of the refunding obligations being authorized by this
chapter by the adoption of a resolution by the Board authorizing the issuance
of obligations to refund, pay and discharge all or any part of such outstanding
obligations of any one or more or all outstanding issues:
1. For the acceleration, deceleration or
other modification of the payment of such obligations, including, without
limitation, any interest on such obligations that is in arrears or about to
become due for any period not exceeding 3 years after the date of the issuance
of the refunding obligations, unless the capitalization of interest on
obligations constituting an indebtedness increases the debt of the State in
excess of the limitation set forth in Section
3 of Article 9 of the Nevada Constitution.
2. For the purpose of reducing interest
costs or effecting other economies.
3. For the purpose of modifying or
eliminating restrictive contractual limitations appertaining to the issuance of
additional obligations, otherwise concerning the outstanding obligations, or
otherwise relating to any operating cost-savings measure appertaining thereto.
4. For any combination of the purposes set
forth in subsections 1, 2 and 3.
(Added to NRS by 2005, 2898)
NRS 333A.0908 Refunding of obligations: Disposition of proceeds; incidental
costs; accrued interest and premium.
1. Except as otherwise provided in NRS 333A.0906 to 333A.0916,
inclusive, the proceeds of refunding obligations issued pursuant to NRS 333A.0906 must be immediately applied to the
retirement of the obligations to be refunded or be placed in escrow or trust in
any trust bank or trust banks within or without or both within and without this
State to be applied to the payment of the refunded obligations or the refunding
obligations, or both, upon their presentation for payment to the extent, in
such priority and otherwise in the manner which the using agency may determine.
2. The incidental costs of refunding
obligations may be paid by the purchaser of the refunding obligations or be
defrayed from any revenues in the State General Fund, subject to appropriations
for such revenues as otherwise provided by law, or other available revenues of
the State under the control of the Board or from the proceeds of the refunding
obligations, or from the interest or other yield derived from the investment of
the proceeds of any refunding obligations or other money in escrow or trust, or
from any other sources legally available therefor, or any combination thereof,
as the using agency may determine.
3. Any accrued interest and any premium
appertaining to a sale of refunding obligations may be applied to the payment
of the interest on or principal of those refunding obligations, or both, or may
be deposited in a reserve therefor, or may be used to refund obligations by
deposit in escrow, trust or otherwise, or may be used to defray any incidental
costs appertaining to the refunding, or any combination thereof, as the using
agency may determine, but in no event by the incurrence of additional debt in
excess of the limitation on state debt set forth in Section 3 of Article 9 of the Nevada
Constitution.
(Added to NRS by 2005, 2899)
NRS 333A.091 Proceeds of refunding obligations in escrow or trust:
Investment; security; sufficient amount; purchaser not responsible for application
of proceeds.
1. Any escrow or trust into which the
proceeds of refunding obligations are placed pursuant to NRS 333A.0908 must not necessarily be limited to
proceeds of refunding obligations but may include other money available for its
purpose.
2. Any proceeds of refunding obligations
placed in escrow or trust, pending such use, may be invested or reinvested in
federal securities, and in the case of an escrow or trust for the refunding of
outstanding obligations issued in accordance with NRS
333A.0906 to 333A.0916, inclusive, in other
securities issued by the Federal Government if the resolution by the Board
authorizing the issuance of such outstanding state securities or any trust
indenture or other proceedings appertaining thereto expressly allows any such
investment or reinvestment in such securities issued by the Federal Government
other than federal securities.
3. A trust bank accounting for federal
securities and other securities issued by the Federal Government in such escrow
or trust may place the securities for safekeeping wholly or in part in any
trust bank or trust banks within or without or both within and without this
State.
4. A trust bank shall continuously secure
any money placed in escrow or trust and not so invested or reinvested in
federal securities and other securities issued by the Federal Government by a
pledge in any trust bank or trust banks within or without or both within and
without the State of federal securities in an amount at all times at least
equal to the total uninvested amount of such money accounted for in such escrow
or trust.
5. Such proceeds and investments in escrow
or trust, together with any interest or other gain to be derived from any such
investment, must be in an amount at all times at least sufficient to pay
principal, interest, any prior redemption premiums due, and any charges of the
escrow agent or trustee and any other incidental expenses payable therefrom,
except to the extent provision may have been previously otherwise made
therefor, as such obligations become due at their respective maturities or due
at designated prior redemption date or dates in connection with which the using
agency has exercised or is obligated to exercise a prior redemption option on
behalf of the State.
6. The computations made in determining
such sufficiency must be verified by a certified public accountant licensed to
practice in this State or in any other state.
7. Any purchaser of any refunding
obligation issued pursuant to NRS 333A.0906 to 333A.0916, inclusive, is not responsible for the
application of the proceeds of the refunding obligation by the State, the
Board, the using agency or any of the officers, agents or employees of the
State.
8. As used in this section, “federal
securities” means bills, notes, certificates of indebtedness, bonds or other
similar securities which are direct obligations of the United States or which
are unconditionally guaranteed as to payment, both of principal and of
interest, by the United States.
(Added to NRS by 2005, 2899)
NRS 333A.0912 Issuance of refunding and other obligations separately or in
combination. Obligations for
refunding and obligations for any other purpose authorized pursuant to NRS 333A.0906 to 333A.0916,
inclusive, or by any other law may be issued separately or issued in
combination in one series or more by the State in accordance with the
provisions of NRS 333A.0906 to 333A.0916, inclusive.
(Added to NRS by 2005, 2900)
NRS 333A.0914 Other statutory provisions applicable to refunding obligations. Except as otherwise provided in NRS 333A.0906 to 333A.0916,
inclusive, the relevant provisions elsewhere herein appertaining generally to
the issuance of obligations to defray the cost of any operating cost-savings
measure are equally applicable in the authorization and issuance of refunding
obligations, including, without limitation, their terms and security, the
covenants and other provisions of the resolution authorizing the issuance of
the obligations, or other instrument or proceedings appertaining thereto, and
other aspects of the obligations.
(Added to NRS by 2005, 2900)
NRS 333A.0916 Conditions for refunding obligations.
1. An obligation may not be refunded
pursuant to NRS 333A.0906 to 333A.0916, inclusive, unless the holder of the
obligation voluntarily surrenders the obligation for exchange or payment, or
unless the obligation matures or is callable for prior redemption under its
terms within 25 years after the date of issuance of the refunding obligations.
Provision must be made for paying the securities within that period.
2. The maturity of any obligation refunded
may not be extended beyond 25 years, or beyond 1 year next following the date
of the last outstanding maturity, whichever limitation is later.
3. The principal amount of the refunding
obligations may:
(a) Exceed the principal amount of the refunded
obligations; or
(b) Be less than or equal to the principal amount
of the obligations being refunded if provision is duly and sufficiently made
for their payment.
(Added to NRS by 2005, 2900)
NRS 333A.0918 Conclusive determination of using agency that statutory
limitations have been met. The
determination of the using agency that the limitations imposed upon the
issuance of obligations pursuant to this chapter, including, without
limitation, any obligations for funding or refunding obligations, have been met
shall be conclusive in the absence of fraud or arbitrary and gross abuse of
discretion regardless of whether the authorizing resolution or the obligations
authorized by that resolution contain a recital as authorized by NRS 333A.092.
(Added to NRS by 2005, 2900)
NRS 333A.092 Recital in resolution as conclusive evidence of validity of
obligation. A resolution providing
for the issuance of a performance contract, including, without limitation, an
installment-purchase contract or lease-purchase contract or other proceedings
appertaining thereto, may provide that the obligations contain a recital that
the obligations are issued pursuant to this chapter, which recital is
conclusive evidence of the validity of the obligations.
(Added to NRS by 2005, 2901)
NRS 333A.100 Indebtedness of State under contract; term of contracts.
1. Notwithstanding any provision of this
chapter to the contrary, a performance contract entered into pursuant to this
chapter does not create a debt for the purposes of Section 3 of Article 9 of the Nevada
Constitution.
2. Except as otherwise provided in this
section, the term of a performance contract may extend beyond the biennium in
which the contract is executed, provided that the performance contract contains
a provision which states that all obligations of the State under the
performance contract are extinguished at the end of any fiscal year if the
Legislature fails to provide an appropriation to the using agency for the
ensuing fiscal year for payments to be made under the performance contract. If
the Legislature fails to appropriate money to a using agency for a performance
contract, there is no remedy against the State, except that if a security
interest in any property was created pursuant to the performance contract, the
holder of such a security interest may enforce the security interest against
that property. Except as otherwise provided in NRS
333A.0916, the term of a performance contract must not exceed 15 years
after the date on which the work required by the performance contract is
completed.
3. The length of a performance contract
may reflect the useful life of the operating cost-savings measure being
installed or purchased under the performance contract.
(Added to NRS by 2003, 3058; A 2005, 2904)
NRS 333A.110 Period over which payments become due.
1. A performance contract must provide
that all payments, other than any obligations that become due if the contract
is terminated before the contract expires, must be made over time.
2. The period over which payments are made
on a performance contract must equal the period over which the operating cost
savings are amortized. Payments on a performance contract must not commence
until the operating cost-savings measures have been installed by the qualified
service company.
(Added to NRS by 2003, 3058)—(Substituted
in revision for NRS 333.610)
NRS 333A.120 Prevailing wage requirement. If
a performance contract entered into pursuant to this chapter requires the
employment of skilled mechanics, skilled workers, semiskilled mechanics,
semiskilled workers or unskilled labor to perform the performance contract, the
performance contract must include a provision relating to the prevailing wage
as required pursuant to NRS 338.020 to 338.090, inclusive.
(Added to NRS by 2003, 3058)
NRS 333A.130 Monitoring of cost savings attributable to operating
cost-savings measures.
1. During the term of a performance contract,
the qualified service company shall monitor the reductions in energy or water
consumption and other operating cost savings attributable to the operating
cost-savings measure purchased or installed under the performance contract, and
shall prepare and provide a report to the using agency documenting the
performance of the operating cost-savings measures:
(a) At the time that the work required by the
performance contract is completed and 1 year after that work is completed; or
(b) At such other intervals as specified in the
performance contract.
2. A qualified service company and the
using agency may agree to make modifications in the calculation of savings
based on:
(a) Subsequent material changes to the baseline
consumption of energy or water identified at the beginning of the term of the
performance contract.
(b) A change in utility rates.
(c) A change in the number of days in the billing
cycle of a utility.
(d) A change in the total square footage of the
building.
(e) A change in the operational schedule, and any
corresponding change in the occupancy and indoor temperature, of the building.
(f) A material change in the weather.
(g) A material change in the amount of equipment
or lighting used at the building.
(h) Any other change which reasonably would be
expected to modify the use of energy or the cost of energy.
(Added to NRS by 2003, 3059; A 2005, 2904)
NRS 333A.140 Information concerning performance contract provided to Office
of Energy. A qualified service
company shall provide to the Office of Energy information concerning each
performance contract which the qualified service company enters into pursuant
to this chapter, including, without limitation, the name of the project, the
using agency for which the project is being carried out and the expected
operating cost savings. The Office of Energy may report any energy savings
realized as a result of such performance contracts to the United States
Department of Energy pursuant to 42 U.S.C. § 13385.
(Added to NRS by 2003, 3059; A 2009, 1406;
2011, 2079)
NRS 333A.150 Financial mechanisms to guarantee operational cost savings are
realized. A performance contract
must include appropriate financial mechanisms determined to be necessary by the
State Treasurer to guarantee that operating cost savings are realized by the
using agency if the actual cost savings do not meet the predicted cost savings.
(Added to NRS by 2003, 3059)—(Substituted
in revision for NRS 333.650)
