45th legislature - STATE OF NEW MEXICO - first session, 2001
RELATING TO THE CONSERVATION OF RESOURCES; RENAMING THE PUBLIC BUILDING ENERGY EFFICIENCY AND WATER CONSERVATION ACT; AMENDING THE ACT TO PROVIDE THAT ENERGY CONSERVATION MEASURES MAY INCLUDE MODIFICATIONS TO TRAFFIC CONTROL SYSTEMS AND VEHICLES AND THAT UTILITY COST SAVINGS AND CONSERVATION-RELATED COST SAVINGS MAY BE PLEDGED AND USED FOR PAYMENTS.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF NEW MEXICO:
Section 1. Section 6-23-1 NMSA 1978 (being Laws 1993, Chapter 231, Section 1, as amended) is amended to read:
"6-23-1. SHORT TITLE.--Chapter 6, Article 23 NMSA 1978
may be cited as the ["Public Building Energy Efficiency and
Water Conservation Act"] "Public Facility Energy Efficiency
and Water Conservation Act"."
Section 2. Section 6-23-2 NMSA 1978 (being Laws 1993, Chapter 231, Section 2, as amended) is amended to read:
"6-23-2. DEFINITIONS.--As used in the Public [Building]
Facility Energy Efficiency and Water Conservation Act:
A. "conservation-related cost savings" means cost savings, other than utility cost savings, in the operating budget of a governmental unit that are a direct result of energy or water conservation measures implemented pursuant to a guaranteed utility savings contract;
[A.] B. "energy conservation measure" means a
training program or [facility alteration] a modification to a
facility, including buildings, systems or vehicles that
is designed to reduce energy consumption or conservation-related operating costs and may include:
(1) insulation of the building structure or systems within the building;
(2) storm windows or doors, caulking or weatherstripping, multiglazed windows or doors, heat absorbing or heat reflective glazed and coated window or door systems, additional glazing, reductions in glass area or other window and door system modifications that reduce energy consumption;
(3) automated or computerized energy control systems;
(4) heating, ventilating or air conditioning system modifications or replacements;
(5) replacement or modification of lighting fixtures to increase the energy efficiency of the lighting system without increasing the overall illumination of a facility, unless an increase in illumination is necessary to conform to the applicable state or local building code or nationally accepted standards for the lighting system after the proposed modifications are made;
(6) energy recovery systems;
(7) solar heating and cooling systems or other renewable energy systems;
(8) cogeneration or combined heat and power
systems that produce steam, chilled water or forms of energy
such as heat, as well as electricity, for use primarily within
a building or complex of buildings; [or]
(9) energy conservation measures that provide long-term operating cost reductions;
(10) maintenance and operation management systems that provide long-term operating cost reductions;
(11) traffic control systems; or
(12) alternative fuel options or accessories for vehicles;
[B.] C. "governmental unit" means an agency,
political subdivision, institution or instrumentality of the
state, including two- and four-year institutions of higher
education, a municipality, a county or a school district;
[C.] D. "guaranteed utility savings contract"
means a contract for the evaluation and recommendation of
energy or water conservation measures [or both] and for the
implementation of one or more of those measures, and which
contract provides that all payments, except obligations on
termination of the contract before its expiration, are to be
made over time and the savings are guaranteed to the extent
necessary to make the payments for the [energy or water]
conservation measures [or both];
[D.] E. "qualified provider" means a person [or
business] experienced in the design, implementation and
installation of energy or water conservation measures [or
both] and who meets the experience qualifications developed by
the energy, minerals and natural resources department for
energy conservation measures or the [state engineer's] office
of the state engineer for water conservation measures; [and]
F. "utility cost savings" means the amounts saved by a governmental unit in the purchase of energy or water that are a direct result of energy or water conservation measures implemented pursuant to a guaranteed utility savings contract; and
[E.] G. "water conservation measures" means a
training program, change in maintenance practices or facility
or landscape alteration designed to reduce water consumption
or conservation-related operating costs."
Section 3. Section 6-23-3 NMSA 1978 (being Laws 1993, Chapter 231, Section 3, as amended) is amended to read:
"6-23-3. [ENERGY EFFICIENCY AND WATER CONSERVATION]
GUARANTEED UTILITY SAVINGS CONTRACTS AUTHORIZED--ENERGY OR
WATER SAVINGS GUARANTEE REQUIRED.--
A. A governmental unit may enter into a guaranteed utility savings contract with a qualified provider to reduce energy, water or conservation-related operating costs if, after review of the utility efficiency proposal from the qualified provider, the governmental unit finds that:
(1) the amount the governmental unit would
spend on the energy or water conservation measures [or both]
recommended in the proposal is not likely to exceed the amount
[to be saved in energy and conservation-related operational
costs] of utility cost savings and conservation-related cost
savings over ten years from the date of installation if the
recommendations in the proposal were followed; and
(2) the qualified provider can provide a
written guarantee that the [energy, water or] utility cost
savings and conservation-related [operating] cost savings will
meet or exceed the costs of the [system] conservation
measures.
B. A guaranteed utility savings contract shall include:
(1) a written guarantee from the qualified
provider that annual utility cost savings and conservation-related cost savings shall meet or exceed the cost of the
[energy or water] conservation measures [or both]; and
(2) a requirement that the qualified provider maintain a direct financial relationship with the governmental unit, irrespective of the source of financing for the energy or water conservation measures to be implemented.
C. A guaranteed utility savings contract may
extend beyond the fiscal year in which it becomes effective
and may provide for payments over a period of time not to
exceed ten years; provided, however, only utility cost
savings, conservation-related cost savings and special funds
authorized pursuant to the Public [Building] Facility Energy
Efficiency and Water Conservation Act or other law shall be
pledged for the payments.
D. A governmental unit may enter into an
installment payment contract or lease-purchase agreement for
the purchase and installation of energy or water conservation
measures [or both] pursuant to a guaranteed utility savings
contract, but only in accordance with the provisions of the
Public [Building] Facility Energy Efficiency and Water
Conservation Act.
E. A governmental unit may enter into a guaranteed
utility savings contract pursuant to Section 13-1-129 NMSA
1978 in accordance with the provisions of the Public
[Building] Facility Energy Efficiency and Water Conservation
Act."
Section 4. Section 6-23-5 NMSA 1978 (being Laws 1993, Chapter 231, Section 5, as amended) is amended to read:
"6-23-5. CONTRACT APPROVAL REQUIRED.--
A. A governmental unit shall not enter into a guaranteed utility savings contract with a qualified provider or any installment payment contract or lease-purchase agreement pursuant to that contract unless the contracts and agreements are reviewed and approved as follows:
(1) for school districts, by the superintendent of public instruction;
(2) for state agencies: [by the secretary of
general services]
(a) if the facilities, systems or vehicles are owned, leased or otherwise controlled by the general services department, by the secretary of general services; and
(b) if the facilities, systems or vehicles are not owned, leased or otherwise controlled by the general services department, by the executive head of the state agency;
(3) for municipalities and counties, by the
[secretary of finance and administration] governing body of
the municipality or county; and
(4) for all post-secondary educational institutions and the state educational institutions confirmed in Article 12, Section 11 of the constitution of New Mexico, by the commission on higher education.
B. The approval required under this section shall be given upon:
(1) a determination that the contracts and
agreements comply with the provisions of the Public [Building]
Facility Energy Efficiency and Water Conservation Act and
other applicable law;
(2) certification by the energy, minerals and natural resources department that the qualified provider of energy conservation measures meets the experience requirements set by the department and the guaranteed energy savings from the energy conservation measures proposed appear to be accurately estimated and reasonable; and
(3) certification by the [state engineer's]
office of the state engineer that the qualified provider of
water conservation measures meets the experience requirements
set by that office and the guaranteed water savings from the
water conservation measures proposed appear to be accurately
estimated and reasonable."
Section 5. Section 6-23-6 NMSA 1978 (being Laws 1993, Chapter 231, Section 6, as amended) is amended to read:
"6-23-6. CONTRACTS AND AGREEMENTS NOT A GENERAL
OBLIGATION OF THE GOVERNMENTAL UNIT.--Payment obligations of a
governmental unit pursuant to a guaranteed utility savings
contract with a qualified provider and any installment payment
contract or lease-purchase agreement pursuant to a guaranteed
utility savings contract are not general obligations of the
governmental unit and are collectible only from utility cost
savings and conservation-related cost savings appropriated by
the legislature and other revenues pledged for that purpose in
accordance with the Public [Building] Facility Energy
Efficiency and Water Conservation Act."
Section 6. Section 6-23-6.1 NMSA 1978 (being Laws 1997, Chapter 42, Section 7, as amended) is amended to read:
"6-23-6.1. REPORTING AND RETENTION OF UTILITY COST SAVINGS FOR STATE AGENCIES.--
A. A state agency entering into a guaranteed utility savings contract with a qualified provider shall, no later than thirty days after the close of the fiscal year, furnish the energy, minerals and natural resources department a consumption and savings report, in a format established jointly by that department and the department of finance and administration, which estimates any cost savings resulting from the implementation of the guaranteed utility savings contract during the fiscal year. The report shall include:
(1) the name or description of each facility or major utility system covered by the report;
(2) utility account numbers;
(3) a record of monthly consumption of water
or energy by fuel type [or both]; and
(4) a record of monthly per-unit cost of
water or energy by fuel type [or both].
B. If the consumption and savings report for a
state agency shows a utility cost savings or conservation-related [operating] cost savings at the end of the fiscal year
that resulted from implementation of a guaranteed utility
savings contract and causes an unexpended and unencumbered
balance in the agency's utility line item, and if the utility
cost savings or conservation-related cost savings has not been
pledged for payments pursuant to the guaranteed utility
savings contract, the dollar amount of the [energy, water]
utility cost savings or conservation-related [operating] cost
savings shall be carried over as a reserved designated fund
balance to the subsequent fiscal year.
C. Beginning the year after the [utility cost
savings and conservation-related operating cost savings]
energy or water conservation measures are implemented, and
until any alternative financing for a guaranteed utility
savings contract is repaid, or for a period of no more than
ten years, whichever is less, all utility budgets and
appropriations for the state agency shall be based on:
(1) the energy or water consumption levels, or both, before the energy or water conservation measures were implemented;
(2) the same allowance for escalation or decrease of utility costs given state agencies that did not participate in a guaranteed utility savings contract; and
(3) any adjustments for acquisitions, expansions, sale or disposition of state agency facilities.
D. At the end of the repayment period for the guaranteed utility savings contract, or ten years, whichever is less, new budgets or appropriations for utilities shall again be based upon actual utility consumption.
E. Upon carryover of the dollar amount of [energy,
water] utility cost savings or conservation-related
[operating] cost savings as a reserved designated fund balance
to the subsequent fiscal year, state agencies may submit a
budget adjustment request to use those funds for the following
purposes:
(1) up to one hundred percent of the funds
may be used for additional energy or water conservation
measures [or both] or for payment of guaranteed utility
savings contracts; and
(2) after encumbrances for additional energy
or water conservation measures [or both] or for payment of
guaranteed utility savings contracts have been made, up to
fifty percent of the remaining funds may be used for purposes
consistent with the duties and responsibilities assigned to
the state agency, while the remaining funds shall revert to
the [general] appropriate fund.
F. For the purposes of this section, "state
agency" means an agency, institution or instrumentality of the
state of New Mexico [eligible to receive income from lands
granted for the use of certain institutions and deposited in
income funds pursuant to Section 19-1-17 NMSA 1978]. "State
agency" does not include a municipality, county or school
district."
Section 7. Section 6-23-7 NMSA 1978 (being Laws 1993, Chapter 231, Section 7, as amended) is amended to read:
"6-23-7. PUBLIC SCHOOL UTILITY CONSERVATION FUND CREATED--USE.--
A. The "public school utility conservation fund"
is created as a special fund in the state treasury. The fund
shall consist of money transferred to the fund, from year to
year, from the [income] distribution of the permanent fund and
land income of which the common schools are the beneficiary.
No other money from any school district or state source shall
be deposited or paid into the public school utility
conservation fund.
B. Annually, after the calculation of the state
equalization guarantee distribution has been made, the
superintendent of public instruction shall determine the sum
of the deductions made in the state equalization guarantee
distribution of school districts pursuant to Paragraph [(6)]
(7) of Subsection D of Section 22-8-25 NMSA 1978 and shall
certify that amount to the secretary of finance and
administration. [Income] Distributions from the permanent
fund and land income of which the common schools are the
beneficiary equal to that amount shall be transferred from the
common school current fund to the public school utility
conservation fund.
C. Money in the public school utility conservation
fund is appropriated to the state department of public
education solely for the purpose of disbursing money to school
districts to make payments pursuant to any guaranteed utility
savings contract between the school district and a qualified
provider or any installment contract or lease-purchase
agreement for the purchase and installation of energy or water
conservation measures [or both] pursuant to that guaranteed
utility savings contract.
D. Disbursements from the public school utility
conservation fund shall be made only to school districts and
only upon certification by the superintendent of public
instruction that the disbursement is for a payment authorized
by the Public [Building] Facility Energy Efficiency and Water
Conservation Act.
E. The superintendent of public instruction shall submit to the legislative finance committee prior to each regular legislative session a list of school districts proposing to enter into approved guaranteed utility savings contracts in the succeeding fiscal year. The list shall include information on the amount of the school district's proposed annual payments and specific amounts that utility and operational budget items are guaranteed to be reduced to achieve the savings to make the payments.
F. Any unexpended or unencumbered balance remaining in the public school utility conservation fund at the end of any fiscal year shall be transferred to the public school fund."
Section 8. Section 6-23-8 NMSA 1978 (being Laws 1993, Chapter 231, Section 8, as amended) is amended to read:
"6-23-8. MUNICIPALITIES--USE OF CERTAIN REVENUES AUTHORIZED.--Upon adoption of an ordinance or resolution by an affirmative vote of a majority of the members of the governing body at any regular or special meeting of the governing body called for this purpose, a municipality may pledge utility cost savings, conservation-related cost savings or any or all revenues not otherwise pledged or obligated from gross receipts taxes received by the municipality pursuant to Section 7-1-6.4 NMSA 1978 and Section 7-1-6.12 NMSA 1978 for payments pursuant to a guaranteed utility savings contract with a qualified provider and any installment payment contract or lease-purchase agreement pursuant to that guaranteed utility savings contract. The ordinance or resolution shall declare the necessity for the guaranteed utility savings contract and related contracts or agreements and shall designate the source of the pledged revenues. Any revenues pledged for such contract payments shall be deposited in a special fund, and the municipality shall not use any other revenues to make such payments. At the end of each fiscal year, any money remaining in the special fund after payment obligations are met may be transferred to any other fund of the municipality."
Section 9. Section 6-23-9 NMSA 1978 (being Laws 1993, Chapter 231, Section 9, as amended) is amended to read:
"6-23-9. COUNTIES--USE OF CERTAIN REVENUES AUTHORIZED.--Upon adoption of an ordinance or resolution by an affirmative vote of a majority of the members of the board of county commissioners at any regular or special meeting of the board called for this purpose, a county may pledge utility cost savings, conservation-related cost savings or any or all of the revenue not otherwise pledged or obligated from the first one-eighth of one percent increment and of one-half of the revenue from the third one-eighth of one percent increment of the county gross receipts tax transferred to the county pursuant to Section 7-1-6.13 NMSA 1978 and any or all of the revenue from the distribution related to the first one-eighth of one percent increment made pursuant to Section 7-1-6.16 NMSA 1978 for the purpose of making payments pursuant to a guaranteed utility savings contract with a qualified provider or any installment payment contract or lease-purchase agreement pursuant to that guaranteed utility savings contract. The ordinance or resolution shall declare the necessity for the guaranteed utility savings contract and related contracts or agreements and shall designate the source of the pledged revenues. Any revenues pledged for such contract payments shall be deposited in a special fund and the county shall not use any other county or state revenue to make such payments. At the end of each fiscal year, any money remaining in the special fund after the payment obligations are met may be transferred to any other fund of the county."
Section 10. Section 6-23-10 NMSA 1978 (being Laws 1993, Chapter 231, Section 10, as amended) is amended to read:
"6-23-10. STATE INSTITUTIONS AND BUILDINGS--USE OF CERTAIN REVENUES AUTHORIZED.--
A. Income from lands granted for the use of
certain institutions and public buildings and deposited in
income funds for such institutions and buildings pursuant to
Section 19-1-17 NMSA 1978 and special funds of institutions
may be appropriated and pledged for payments pursuant to any
guaranteed utility savings contract or related lease-purchase
agreement or installment payment contract pursuant to the
Public [Building] Facility Energy Efficiency and Water
Conservation Act. Any money so appropriated shall be
deposited in a special fund or account of the institution or
fund and, except as provided in Subsection B of this section,
that revenue and no other revenue shall be pledged for
payments pursuant to the Public [Building] Facility Energy
Efficiency and Water Conservation Act.
B. In the absence of an appropriation for payments pursuant to Subsection A of this section, when entering into a guaranteed utility savings contract, an institution may pledge resulting utility cost savings or conservation-related cost savings for payments to be made under the contract, provided that the utility cost savings or conservation-related cost savings are subject to appropriation by the legislature."
Section 11. Section 13-1-150 NMSA 1978 (being Laws 1984, Chapter 65, Section 123, as amended) is amended to read:
"13-1-150. MULTI-TERM CONTRACTS--SPECIFIED PERIOD.--A
multi-term contract for items of tangible personal property,
construction or services except for professional services, in
an amount under twenty-five thousand dollars ($25,000), may be
entered into for any period of time deemed to be in the best
interests of the state agency or a local public body not to
exceed four years; provided that the term of the contract and
conditions of renewal or extension, if any, are included in
the specifications and funds are available for the first
fiscal period at the time of contracting. If the amount of
the contract is twenty-five thousand dollars ($25,000) or
more, the term shall not exceed eight years, including all
extensions and renewals, except that for any such contract
entered into pursuant to the Public [Building] Facility Energy
Efficiency and Water Conservation Act, the term shall not
exceed ten years, including all extensions and renewals.
Payment and performance obligations for succeeding fiscal
periods shall be subject to the availability and appropriation
of funds therefor. A contract for professional services,
except for services required to support or operate federally
certified medicaid, financial assistance and child support
enforcement management information or payment systems and
except for services to design, develop or implement the
taxation and revenue information management systems project
authorized by Laws 1997, Chapter 125, may not exceed a term of
four years, including all extensions and renewals, except that
a multi-term contract for the services of trustees, escrow
agents, registrars, paying agents, letter of credit issuers
and other forms of credit enhancement and other similar
services, excluding bond attorneys, underwriters and financial
advisors with regard to the issuance, sale and delivery of
public securities, may be for the life of the securities or as
long as the securities remain outstanding."