Nrs: Chapter 333A - State Performance Contracts For Operating Cost-Savings Measures

Link to law: https://www.leg.state.nv.us/NRS/NRS-333A.html
Published: 2015

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[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)