2005 Nevada Revised Statutes - Chapter 333A — State Performance Contracts for Operating Cost-Savings Measures

CHAPTER 333A - STATE PERFORMANCE CONTRACTSFOR OPERATING COST-SAVINGS MEASURES

NRS 333A.010 Definitions.

NRS 333A.015 Boarddefined.

NRS 333A.020 Buildingdefined.

NRS 333A.030 Operatingcost savings defined.

NRS 333A.040 Operatingcost-savings measure defined.

NRS 333A.050 Performancecontract defined.

NRS 333A.060 Qualifiedservice company defined.

NRS 333A.070 Usingagency defined.

NRS 333A.075 Purposeof contract; compliance with applicable building codes.

NRS 333A.080 Procedurefor determination of qualified service companies by State Public Works Board;request for qualifications; adoption of criteria; factors; compilation of listof qualified service companies.

NRS 333A.082 Notificationto qualified service companies; selection of qualified service company;financial-grade audit required.

NRS 333A.084 Requirementsfor comprehensive audits.

NRS 333A.086 Third-partyconsultants.

NRS 333A.090 Financingand structure of performance contract; minimum annual operating cost savingsfrom performance contract; change orders.

NRS 333A.0902 Installment-purchaseand lease-purchase contracts: Security interests; certificates ofparticipation; lease of property; other agreements, contracts or arrangements.

NRS 333A.0904 Installment-purchaseand lease-purchase contracts: Property that is subject of contract is exemptfrom ad valorem property taxation under certain circumstances and is to bedeemed property of State or using agency for purposes of statutory limits ondamages.

NRS 333A.0906 Refundingof obligations: Resolution; purposes.

NRS 333A.0908 Refundingof obligations: Disposition of proceeds; incidental costs; accrued interest andpremium.

NRS 333A.091 Proceedsof refunding obligations in escrow or trust: Investment; security; sufficientamount; purchaser not responsible for application of proceeds.

NRS 333A.0912 Issuanceof refunding and other obligations separately or in combination.

NRS 333A.0914 Otherstatutory provisions applicable to refunding obligations.

NRS 333A.0916 Conditionsfor refunding obligations.

NRS 333A.0918 Conclusivedetermination of using agency that statutory limitations have been met.

NRS 333A.092 Recitalin resolution as conclusive evidence of validity of obligation.

NRS 333A.100 Indebtednessof State under contract; term of contracts.

NRS 333A.110 Periodover which payments become due.

NRS 333A.120 Prevailingwage requirement.

NRS 333A.130 Monitoringof cost savings attributable to operating cost-savings measures.

NRS 333A.140 Informationconcerning performance contract provided to Office of Energy.

NRS 333A.150 Financialmechanisms to guarantee operational cost savings are realized.

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NRS 333A.010 Definitions. As used in this chapter, unless the context otherwiserequires, the words and terms defined in NRS333A.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 Boarddefined. Board means:

1. If the using agency that enters into a performancecontract is the Nevada System of Higher Education, the Board of Regents of theUniversity of Nevada; or

2. For any other using agency that enters into aperformance contract, the State Board of Examiners.

(Added to NRS by 2005, 2895)

NRS 333A.020 Buildingdefined. Building means any structure, buildingor facility, including any equipment, furnishings or appliances within the structure,building or facility, that is owned or operated by a using agency. The termincludes, without limitation, occupied and unoccupied structures, buildings andfacilities, and any other improvements owned or operated by a using agency thatincur operating costs.

(Added to NRS by 2003, 3054)(Substitutedin revision for NRS 333.520)

NRS 333A.030 Operatingcost savings defined. Operating cost savingsmeans any expenses that are eliminated or avoided on a long-term basis as aresult of the installation or modification of equipment, or services performedby a qualified service company. The term does not include any savings that arerealized solely because of a shift in the cost of personnel or other similarshort-term cost savings.

(Added to NRS by 2003, 3054)(Substitutedin revision for NRS 333.530)

NRS 333A.040 Operatingcost-savings measure defined. Operatingcost-savings measure means any improvement, repair or alteration to abuilding, or any equipment, fixture or furnishing to be added or used in abuilding that is designed to reduce operating costs, including those costsrelated to electrical energy and demand, thermal energy, water consumption,waste disposal and contract-labor costs, and increase the operating efficiencyof the building for the appointed functions that are cost-effective. The termincludes, without limitation:

1. Procurement of low-cost energy supplies, includingelectricity and natural gas.

2. Procurement of cost savings as a result ofoutsourcing energy needs for electrical power, heating and cooling.

3. Operational or maintenance labor savings resultingfrom reduced costs for maintenance contracts as provided through reduction ofrequired 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 toreduce energy and other utility expenses, including, without limitation:

(a) Costs for materials and labor required to replaceold equipment with new, more efficient equipment.

(b) Storm windows or doors, caulking or weatherstripping, multiglazed windows or doors, heat-absorbing or heat-reflectiveglazed or coated windows or doors, reductions in glass area, and othermodifications 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, lightingfixtures.

(f) Improvements to the indoor air quality of abuilding that conform to all requirements of an applicable building code.

(g) Energy recovery systems.

(h) Systems for combined cooling, heating and powerthat produce steam or other forms of energy, for use primarily within thebuilding or a complex of buildings.

(i) Installation of, or modifications to, existingsystems for daylighting, including lighting control systems.

(j) Installation of, or modification to, technologiesthat use renewable or alternative energy sources.

(k) Programs relating to building operation that reduceoperating costs, including, without limitation, computerized programs, trainingand other similar activities.

(l) Programs for improvement of steam traps to reduceoperating costs.

(m) Devices that reduce water consumption in buildings,for lawns and for other irrigation applications.

(n) Any additional improvements to buildinginfrastructures that produce energy and operating cost savings, significantlyreduce energy consumption or increase the operating efficiency of the buildingsfor their appointed functions, provided that such improvements comply withapplicable building codes.

(o) Trash compaction and waste minimization.

5. Investment in educational programs relating tooccupational behavior that are designed to reduce the consumption of energy orwater, or both, and the generation of waste.

(Added to NRS by 2003, 3054)(Substitutedin revision for NRS 333.540)

NRS 333A.050 Performancecontract defined. Performance contractmeans a contract between a using agency and a qualified service company for theevaluation, recommendation and implementation of one or more operatingcost-savings measures.

(Added to NRS by 2003, 3055)(Substitutedin revision for NRS 333.550)

NRS 333A.060 Qualifiedservice company defined. Qualified servicecompany means a person with a record of established projects or a person withdemonstrated technical, operational, financial and managerial capabilities todesign and carry out operating cost-savings measures and other similar buildingimprovements, and who has the ability to secure necessary financial measures toensure related guarantees for operating cost savings.

(Added to NRS by 2003, 3055)(Substitutedin revision for NRS 333.560)

NRS 333A.070 Using agency defined. Usingagency means all officers, departments, institutions, boards, commissions andother agencies in the Executive Department of the State Government which derivetheir support from public money in whole or in part, whether the money isprovided by the State of Nevada, received from the Federal Government or anybranch, bureau or agency thereof, or derived from private or other sources. Theterm includes the Nevada System of Higher Education, but does not include theNevada Rural Housing Authority, local governments as defined in NRS 354.474, conservation districts andirrigation districts.

(Added to NRS by 2003, 3055)

NRS 333A.075 Purposeof contract; compliance with applicable building codes.

1. Notwithstanding any provision of this chapter, chapter 333 and 338of NRS to the contrary, a using agency may enter into a performance contractwith a qualified service company for the purchase and installation of one ormore operating cost-savings measures to reduce costs related to energy, waterand the disposal of waste, and related labor costs.

2. Any operating cost-savings measures put into placeas a result of a performance contract must comply with all applicable buildingcodes.

(Added to NRS by 2005, 2895)

NRS 333A.080 Procedurefor determination of qualified service companies by State Public Works Board;request for qualifications; adoption of criteria; factors; compilation of listof qualified service companies.

1. The State Public Works Board shall determine thosecompanies that satisfy the requirements of qualified service companies for thepurposes of this chapter. In making such a determination, the State PublicWorks Board shall enlist the assistance of the staffs of the Office of Energywithin the Office of the Governor, the Buildings and Grounds Division of theDepartment of Administration and the Purchasing Division of the Department ofAdministration. The State Public Works Board shall prepare and issue a requestfor qualifications to not less than three potential qualified servicecompanies.

2. In sending out a request for qualifications, theState Public Works Board:

(a) Shall attempt to identify at least one potentialqualified service company located within this State; and

(b) May consider whether and to what extent thecompanies to which the request for qualifications will be sent will use localcontractors.

3. The State Public Works Board shall adopt, byregulation, criteria to determine those companies that satisfy the requirementsof qualified service companies. The criteria for evaluation must include,without limitation, the following areas as substantive factors to assess thecapability of such companies:

(a) Design;

(b) Engineering;

(c) Installation;

(d) Maintenance and repairs associated with performancecontracts;

(e) Experience in conversions to different sources ofenergy or fuel and other services related to operating cost-savings measuresprovided that is done in association with a comprehensive energy, water orwaste disposal cost-savings retrofit;

(f) Monitoring projects after the projects areinstalled;

(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 PublicWorks Board to be relevant and appropriate to the ability of a company toperform the projects.

Indetermining whether a company satisfies the requirements of a qualified servicecompany, the State Public Works Board shall also consider whether the companyholds the appropriate licenses required for the design, engineering andconstruction which would be completed pursuant to a performance contract.

4. The State Public Works Board shall compile a listof those companies that it determines satisfy the requirements of qualifiedservice companies.

(Added to NRS by 2003, 3056; A 2005, 2901)

NRS 333A.082 Notificationto qualified service companies; selection of qualified service company;financial-grade audit required.

1. The Purchasing Division of the Department ofAdministration shall work directly with any using agency interested in enteringinto a performance contract, using the list of qualified service companiescompiled by the State Public Works Board pursuant to NRS 333A.080. The Purchasing Division, inconjunction with the using agency, shall ensure that each appropriate qualifiedservice company is notified of the using agencys interest in entering into aperformance contract and coordinate an opportunity for each such qualifiedservice company to:

(a) Visit the site pertaining to which the using agencywishes to enter into a performance contract;

(b) Perform a comprehensive audit in the mannerprescribed in NRS 333A.084; and

(c) Submit a proposal, including, without limitation,the comprehensive audit, and make a related presentation to the using agencyfor all operating cost-savings measures that the qualified service companydetermines would be practicable to implement.

2. The using agency shall:

(a) Evaluate the proposals and presentations madepursuant to subsection 1;

(b) Evaluate the financial stability of the qualifiedservice companies that made proposals and presentations pursuant to subsection1 based on the financial statements and ratings of the qualified servicecompanies; and

(c) Select a qualified service company,

pursuant tothe provisions of this chapter and any regulations adopted pursuant thereto,for evaluating and awarding contracts.

3. A qualified service company selected by a usingagency pursuant to subsection 2 shall prepare a financial-grade operationalaudit, which must include, without limitation:

(a) A detailed explanation of the operating costsavings that will result from the performance contract; and

(b) A comparison of the costs of implementing theoperating cost-savings measures to the operating cost savings that areanticipated 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 companypursuant to subsection 3 becomes, upon acceptance, a part of the finalperformance contract and the costs incurred by the qualified service company inpreparing the financial-grade operational audit shall be deemed to be part ofthe performance contract. If, after the financial-grade operational audit isprepared, the using agency decides not to execute the performance contract, theusing agency shall pay the qualified service company that prepared thefinancial-grade operational audit the costs incurred by the qualified servicecompany in preparing the financial-grade operational audit, if the Legislaturehas specifically appropriated money for that purpose. An appropriation by theLegislature for the purchase and installation of an operating cost-savingsmeasure creates no presumption that the using agency for which the money wasappropriated is required to enter into such a performance contract.

(Added to NRS by 2005, 2895)

NRS 333A.084 Requirementsfor comprehensive audits.

1. Each comprehensive audit performed pursuant toparagraph (b) of subsection 1 of NRS333A.082 must include, without limitation:

(a) An assessment of any operating cost-savings measurethat might be implemented within the building of the using agency, including,without limitation, any operating cost-savings measure specifically requestedby the using agency;

(b) An estimate of the costs associated withimplementing an operating cost-savings measure described in paragraph (a);

(c) A comparison of the energy and water consumption inthe building of the using agency to the energy and water consumption in similarbuildings; and

(d) A report that compares the current pattern of thecosts to the using agency associated with energy consumption, water consumptionand the disposal of waste, and related labor costs, to the projected costs ifthe using agency implements operating cost-savings measures.

2. A comprehensive audit must be based on:

(a) A review and analysis of the historical energy andwater usage of the using agency; and

(b) Surveys, plans, specifications or drawings thatprovide details of the structure or design of the building of the using agency.

3. The using agency shall provide to eachqualified service company that intends to perform a comprehensive audit therecords of the energy and water consumption of the building.

(Added to NRS by 2005, 2896)

NRS 333A.086 Third-partyconsultants.

1. A using agency that selects a qualified servicecompany pursuant to NRS 333A.082 shallretain the professional services of a third-party consultant to work on behalfof the using agency in coordination with the qualified service company.

2. A third-party consultant retained pursuant tosubsection 1 must be certified by the Association of Energy Engineers as aCertified Energy Manager or hold similar credentials from a comparablenationally recognized organization.

3. The duties of a third-party consultant retainedpursuant to subsection 1 may include, without limitation:

(a) Assisting the using agency in reviewing theoperating cost-savings measures proposed by the qualified service company;

(b) Overseeing the construction of the operatingcost-savings measures; and

(c) Monitoring the operating cost savings after theconstruction of the operating cost-savings measures is completed.

4. The Purchasing Division of the Department ofAdministration may procure sufficient funding from the qualified servicecompany, through negotiation, to pay for the third-party consultant out of theproceeds relating to the performance contract. A qualified service companyshall not pay a third-party consultant directly for the work described insubsection 3.

5. A third-party consultant retained pursuant tosubsection 1 may recommend that the using agency not execute the performancecontract. If the using agency does not execute the performance contract, theusing agency shall pay the third-party consultant a prenegotiated fee based onthe work completed by the third-party consultant.

(Added to NRS by 2005, 2897)

NRS 333A.090 Financingand structure of performance contract; minimum annual operating cost savingsfrom performance contract; change orders.

1. Any financing related to a performance contractmust 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-purchasecontract. Such an installment-purchase contract or lease-purchase contract isnot subject to:

(1) The provisions of NRS 353.500 to 353.630, inclusive.

(2) Any requirement of competitive biddingor other restriction imposed on the procedure for the awarding of contracts orthe procurement of goods or services.

3. A performance contract may be structured as:

(a) A performance contract that guarantees operatingcost savings, which includes, without limitation, the design and installationof equipment, the operation and maintenance, if applicable, of any of the operatingcost-savings measures and the guaranteed annual savings which must meet orexceed the total annual contract payments to be made by the using agency,including, without limitation, any financing charges to be incurred by theusing agency over the life of the performance contract. The using agency mayrequire that these savings be verified:

(1) When the work required by the performancecontract is completed and 1 year after that work is completed; or

(2) Over a sufficient period that demonstratessavings.

(b) A shared-savings contract which includes provisionsmutually agreed upon by the using agency and qualified service company as tothe negotiated rate of payments based upon operating cost savings and astipulated maximum consumption level of energy or water, or both energy andwater, over the life of the contract.

4. The annual operating cost savings resulting from aperformance contract must meet or exceed the total annual contract payments tobe made by the using agency, including any financing charges to be incurred bythe using agency over the life of the performance contract.

5. A change order to a performance contract executedpursuant to NRS 333A.080 may not beapproved by the using agency if the cost of the change order would cause theannual operating cost savings resulting from the performance contract to beless 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 thelife of the performance contract, unless approval of the change order is moreeconomically feasible than termination of the operating cost-savings measure.

(Added to NRS by 2003, 3058; A 2005, 2903)

NRS 333A.0902 Installment-purchaseand lease-purchase contracts: Security interests; certificates ofparticipation; lease of property; other agreements, contracts or arrangements. In connection with any installment-purchase contract orlease-purchase contract entered into to finance a performance contract, theBoard may:

1. Grant a security interest in any property that isthe subject of the installment-purchase contract or lease-purchase contract andexecute an instrument to evidence such a security interest, including, withoutlimitation, a deed of trust, a leasehold interest deed of trust, a mortgage ora financing agreement.

2. Offer certificates of participation.

3. If the installment-purchase contract orlease-purchase contract involves an improvement to property owned by the Stateof Nevada or the using agency, enter into a lease of the property to which theimprovement will be made and any property that is adjacent to that property ifthe installment-purchase contract or lease-purchase contract:

(a) Except as otherwise provided in NRS 333A.0916, has a term of not morethan 15 years beyond the date on which construction of the work required by theinstallment-purchase contract or lease-purchase contract is completed; and

(b) Provides for rental payments that approximate thefair market rental of the property before the improvement is made, asdetermined by the Board at the time the parties enter into the lease, whichmust be paid if the installment-purchase contract or lease-purchase contractterminates before the expiration of the lease because the Legislature fails toappropriate money for payments due pursuant to the installment-purchasecontract or lease-purchase contract.

A leaseentered into pursuant to this subsection may provide for nominal rentalpayments to be paid pursuant to the lease before the installment-purchasecontract or lease-purchase contract terminates.

4. Enter into any other agreement, contract orarrangement that the Board determines would be beneficial to the purpose of theinstallment-purchase contract or lease-purchase contract, including, withoutlimitation, contracts for professional services, trust indentures, paying agentagreements and contracts of insurance.

(Added to NRS by 2005, 2897)

NRS 333A.0904 Installment-purchaseand lease-purchase contracts: Property that is subject of contract is exemptfrom ad valorem property taxation under certain circumstances and is to bedeemed property of State or using agency for purposes of statutory limits ondamages. For the period during which an installment-purchasecontract or lease-purchase contract that was entered into to finance aperformance contract is in effect, the property that is the subject of the installment-purchasecontract or lease-purchase contract:

1. Is exempt from ad valorem property taxation by thisState and its political subdivisions if:

(a) An improvement is being constructed on the propertypursuant to the installment-purchase contract or lease-purchase contract; or

(b) This State or a using agency is in possession ofthe property.

2. Shall be deemed to be the property of this State orthe using agency that is a party to the installment-purchase contract orlease-purchase contract for the purposes of statutory limits on damages thatmay be awarded against this State, including, without limitation, the limits inchapter 41 of NRS, with respect to any actionor claim, including a claim for civil damages, that arises from or is relatedto the property and is brought by a person who is not a party to theinstallment-purchase contract or lease-purchase contract if:

(a) An improvement is being constructed on the propertypursuant to the installment-purchase contract or lease-purchase contract; or

(b) This State or the using agency is in possession ofthe property.

(Added to NRS by 2005, 2898)

NRS 333A.0906 Refundingof obligations: Resolution; purposes. Anyobligations of this State issued in accordance with this chapter may berefunded on behalf of the State by the Board without the necessity of therefunding obligations being authorized by this chapter by the adoption of aresolution by the Board authorizing the issuance of obligations to refund, payand discharge all or any part of such outstanding obligations of any one ormore or all outstanding issues:

1. For the acceleration, deceleration or othermodification of the payment of such obligations, including, without limitation,any interest on such obligations that is in arrears or about to become due forany period not exceeding 3 years after the date of the issuance of therefunding obligations, unless the capitalization of interest on obligationsconstituting an indebtedness increases the debt of the State in excess of thelimitation set forth in Section 3 of Article 9 of the Nevada Constitution.

2. For the purpose of reducing interest costs oreffecting other economies.

3. For the purpose of modifying or eliminatingrestrictive contractual limitations appertaining to the issuance of additionalobligations, otherwise concerning the outstanding obligations, or otherwiserelating to any operating cost-savings measure appertaining thereto.

4. For any combination of the purposes set forth insubsections 1, 2 and 3.

(Added to NRS by 2005, 2898)

NRS 333A.0908 Refundingof obligations: Disposition of proceeds; incidental costs; accrued interest andpremium.

1. Except as otherwise provided in NRS 333A.0906 to 333A.0916, inclusive, the proceeds ofrefunding obligations issued pursuant to NRS333A.0906 must be immediately applied to the retirement of the obligationsto be refunded or be placed in escrow or trust in any trust bank or trust bankswithin or without or both within and without this State to be applied to thepayment of the refunded obligations or the refunding obligations, or both, upontheir presentation for payment to the extent, in such priority and otherwise inthe manner which the using agency may determine.

2. The incidental costs of refunding obligations maybe paid by the purchaser of the refunding obligations or be defrayed from anyrevenues in the State General Fund, subject to appropriations for such revenuesas otherwise provided by law, or other available revenues of the State underthe control of the Board or from the proceeds of the refunding obligations, orfrom the interest or other yield derived from the investment of the proceeds ofany refunding obligations or other money in escrow or trust, or from any othersources legally available therefor, or any combination thereof, as the usingagency may determine.

3. Any accrued interest and any premium appertainingto a sale of refunding obligations may be applied to the payment of theinterest on or principal of those refunding obligations, or both, or may bedeposited in a reserve therefor, or may be used to refund obligations bydeposit in escrow, trust or otherwise, or may be used to defray any incidentalcosts appertaining to the refunding, or any combination thereof, as the usingagency may determine, but in no event by the incurrence of additional debt inexcess of the limitation on state debt set forth in Section 3 of Article 9 ofthe Nevada Constitution.

(Added to NRS by 2005, 2899)

NRS 333A.091 Proceedsof refunding obligations in escrow or trust: Investment; security; sufficientamount; purchaser not responsible for application of proceeds.

1. Any escrow or trust into which the proceeds ofrefunding obligations are placed pursuant to NRS 333A.0908 must not necessarily belimited to proceeds of refunding obligations but may include other moneyavailable for its purpose.

2. Any proceeds of refunding obligations placed inescrow or trust, pending such use, may be invested or reinvested in federalsecurities, and in the case of an escrow or trust for the refunding ofoutstanding obligations issued in accordance with NRS 333A.0906 to 333A.0916, inclusive, in othersecurities issued by the Federal Government if the resolution by the Boardauthorizing the issuance of such outstanding state securities or any trustindenture or other proceedings appertaining thereto expressly allows any suchinvestment or reinvestment in such securities issued by the Federal Governmentother than federal securities.

3. A trust bank accounting for federal securities andother securities issued by the Federal Government in such escrow or trust mayplace the securities for safekeeping wholly or in part in any trust bank ortrust banks within or without or both within and without this State.

4. A trust bank shall continuously secure any moneyplaced in escrow or trust and not so invested or reinvested in federalsecurities and other securities issued by the Federal Government by a pledge inany trust bank or trust banks within or without or both within and without theState of federal securities in an amount at all times at least equal to thetotal 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 suchinvestment, must be in an amount at all times at least sufficient to payprincipal, interest, any prior redemption premiums due, and any charges of theescrow agent or trustee and any other incidental expenses payable therefrom,except to the extent provision may have been previously otherwise madetherefor, as such obligations become due at their respective maturities or dueat designated prior redemption date or dates in connection with which the usingagency has exercised or is obligated to exercise a prior redemption option onbehalf of the State.

6. The computations made in determining suchsufficiency must be verified by a certified public accountant licensed topractice in this State or in any other state.

7. Any purchaser of any refunding obligation issuedpursuant to NRS 333A.0906 to 333A.0916, inclusive, is not responsiblefor 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 theState.

8. As used in this section, federal securities meansbills, notes, certificates of indebtedness, bonds or other similar securitieswhich are direct obligations of the United States or which are unconditionallyguaranteed as to payment, both of principal and of interest, by the UnitedStates.

(Added to NRS by 2005, 2899)

NRS 333A.0912 Issuanceof refunding and other obligations separately or in combination. Obligations for refunding and obligations for any otherpurpose authorized pursuant to NRS333A.0906 to 333A.0916,inclusive, or by any other law may be issued separately or issued incombination in one series or more by the State in accordance with theprovisions of NRS 333A.0906 to 333A.0916, inclusive.

(Added to NRS by 2005, 2900)

NRS 333A.0914 Otherstatutory provisions applicable to refunding obligations. Except as otherwise provided in NRS 333A.0906 to 333A.0916, inclusive, the relevantprovisions elsewhere herein appertaining generally to the issuance ofobligations to defray the cost of any operating cost-savings measure areequally applicable in the authorization and issuance of refunding obligations,including, without limitation, their terms and security, the covenants andother provisions of the resolution authorizing the issuance of the obligations,or other instrument or proceedings appertaining thereto, and other aspects ofthe obligations.

(Added to NRS by 2005, 2900)

NRS 333A.0916 Conditionsfor refunding obligations.

1. An obligation may not be refunded pursuant to NRS 333A.0906 to 333A.0916, inclusive, unless the holderof the obligation voluntarily surrenders the obligation for exchange orpayment, or unless the obligation matures or is callable for prior redemptionunder its terms within 25 years after the date of issuance of the refundingobligations. Provision must be made for paying the securities within thatperiod.

2. The maturity of any obligation refunded may not beextended beyond 25 years, or beyond 1 year next following the date of the lastoutstanding maturity, whichever limitation is later.

3. The principal amount of the refunding obligationsmay:

(a) Exceed the principal amount of the refundedobligations; or

(b) Be less than or equal to the principal amount ofthe obligations being refunded if provision is duly and sufficiently made fortheir payment.

(Added to NRS by 2005, 2900)

NRS 333A.0918 Conclusivedetermination of using agency that statutory limitations have been met. The determination of the using agency that the limitationsimposed upon the issuance of obligations pursuant to this chapter, including,without limitation, any obligations for funding or refunding obligations, havebeen met shall be conclusive in the absence of fraud or arbitrary and grossabuse of discretion regardless of whether the authorizing resolution or theobligations authorized by that resolution contain a recital as authorized by NRS 333A.092.

(Added to NRS by 2005, 2900)

NRS 333A.092 Recitalin resolution as conclusive evidence of validity of obligation. A resolution providing for the issuance of a performancecontract, including, without limitation, an installment-purchase contract orlease-purchase contract or other proceedings appertaining thereto, may providethat the obligations contain a recital that the obligations are issued pursuantto this chapter, which recital is conclusive evidence of the validity of theobligations.

(Added to NRS by 2005, 2901)

NRS 333A.100 Indebtednessof State under contract; term of contracts.

1. Notwithstanding any provision of this chapter tothe contrary, a performance contract entered into pursuant to this chapter doesnot create a debt for the purposes of Section 3 of Article 9 of the NevadaConstitution.

2. Except as otherwise provided in this section, theterm of a performance contract may extend beyond the biennium in which thecontract is executed, provided that the performance contract contains aprovision which states that all obligations of the State under the performancecontract are extinguished at the end of any fiscal year if the Legislaturefails to provide an appropriation to the using agency for the ensuing fiscalyear for payments to be made under the performance contract. If the Legislaturefails to appropriate money to a using agency for a performance contract, thereis no remedy against the State, except that if a security interest in anyproperty was created pursuant to the performance contract, the holder of such asecurity interest may enforce the security interest against that property.Except as otherwise provided in NRS333A.0916, the term of a performance contract must not exceed 15 yearsafter the date on which the work required by the performance contract is completed.

3. The length of a performance contract may reflectthe useful life of the operating cost-savings measure being installed orpurchased under the performance contract.

(Added to NRS by 2003, 3058; A 2005, 2904)

NRS 333A.110 Periodover which payments become due.

1. A performance contract must provide that allpayments, other than any obligations that become due if the contract isterminated before the contract expires, must be made over time.

2. The period over which payments are made on aperformance contract must equal the period over which the operating costsavings are amortized. Payments on a performance contract must not commenceuntil the operating cost-savings measures have been installed by the qualifiedservice company.

(Added to NRS by 2003, 3058)(Substitutedin revision for NRS 333.610)

NRS 333A.120 Prevailingwage requirement. If a performance contractentered into pursuant to this chapter requires the employment of skilledmechanics, skilled workmen, semiskilled mechanics, semiskilled workmen orunskilled labor to perform the performance contract, the performance contractmust include a provision relating to the prevailing wage as required pursuantto NRS 338.020 to 338.090, inclusive.

(Added to NRS by 2003, 3058)

NRS 333A.130 Monitoringof cost savings attributable to operating cost-savings measures.

1. During the term of a performance contract, thequalified service company shall monitor the reductions in energy or waterconsumption and other operating cost savings attributable to the operatingcost-savings measure purchased or installed under the performance contract, andshall prepare and provide a report to the using agency documenting theperformance of the operating cost-savings measures:

(a) At the time that the work required by theperformance contract is completed and 1 year after that work is completed; or

(b) At such other intervals as specified in theperformance contract.

2. A qualified service company and the using agencymay agree to make modifications in the calculation of savings based on:

(a) Subsequent material changes to the baselineconsumption of energy or water identified at the beginning of the term of theperformance contract.

(b) A change in utility rates.

(c) A change in the number of days in the billing cycleof a utility.

(d) A change in the total square footage of thebuilding.

(e) A change in the operational schedule, and anycorresponding 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 orlighting used at the building.

(h) Any other change which reasonably would be expectedto modify the use of energy or the cost of energy.

(Added to NRS by 2003, 3059; A 2005, 2904)

NRS 333A.140 Informationconcerning performance contract provided to Office of Energy. A qualified service company shall provide to the Office ofEnergy within the Office of the Governor information concerning eachperformance contract which the qualified service company enters into pursuantto this chapter, including, without limitation, the name of the project, theusing agency for which the project is being carried out and the expectedoperating cost savings. The Office of Energy may report any energy savingsrealized as a result of such performance contracts to the United StatesDepartment of Energy pursuant to 42 U.S.C. 13385.

(Added to NRS by 2003, 3059)

NRS 333A.150 Financialmechanisms to guarantee operational cost savings are realized. A performance contract must include appropriate financialmechanisms determined to be necessary by the State Treasurer to guarantee thatoperating cost savings are realized by the using agency if the actual costsavings do not meet the predicted cost savings.

(Added to NRS by 2003, 3059)(Substitutedin revision for NRS 333.650)

 

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