TITLE 50 STATE GOVERNMENT

Section 37. Guaranteed Energy Savings Performance Contracting, 50-37-1 through 50-37-8.

ARTICLE 6 CONSTRUCTION OF CHAPTER

50-37-4. Contracts provisions.

1. A guaranteed energy savings performance contract may provide that all payments, except obligations on termination of the contract before its scheduled expiration, shall be made over a period of time. The contract shall require the energy performance contractor to provide to the governmental unit an annual reconciliation of the guaranteed energy cost savings. The energy performance contractor shall be liable for any annual savings shortfall which may occur. In the event that such reconciliation reveals an excess in annual energy cost savings, such excess savings shall not be used to cover potential energy cost savings shortages in subsequent contract years. The guaranteed energy savings performance contract shall be for a firm fixed price. The governmental unit may require the qualified energy services provider to provide a payment and performance bond relating to the installation of energy conservation measures in the amount equal to 100 percent of the guaranteed energy savings performance contract.
2. A guaranteed energy savings performance contract shall include a written guarantee that energy, water, waste-water, or operating cost savings or revenue increases will meet or exceed the cost of the energy conservation measures to be evaluated, recommended, designed, implemented, or installed under the contract within a 20 year period from the date of final acceptance of installation or implementation. Calculation of the energy, water, waste-water, or operating cost savings or revenue increases may take into account rebates, grants, incentives, or similar payments available under published programs which are reasonably anticipated to be received by the governmental unit as a direct result of the work performed by the qualified energy services provider even though such payments are not included in the qualified energy services provider's contractual guarantee. Escalations and other financial considerations assumed in savings calculations shall be defined in the contract if they are included in the savings calculations and are required to meet the payback criteria and life cycle analysis. Performance guarantees with stipulated savings that have been measured in accordance with the International Performance Measurement and Verification Protocol or other recognized and documented industry engineering standard are allowable and shall be explicitly stated in the contract.
3. A governmental unit may enter into a third-party installment payment or lease purchase agreement to finance the costs associated with the guaranteed energy savings performance contract and any related hazardous materials abatement. The installment payment or lease purchase agreement may provide for payments over a period of time not to exceed 20 years.
4. An improvement that is not causally connected to an energy conservation measure may be included in a guaranteed energy savings performance contract if:
   1. The total value of the improvement does not exceed 15 percent of the total value of the guaranteed energy savings performance contract; and
   2. Either:
      1. The improvement is necessary to conform to a law, a rule, or an ordinance; or
      2. An analysis within the guaranteed energy savings performance contract demonstrates that there is an economic advantage to the governmental unit implementing an improvement as part of the guaranteed energy savings performance contract, and the savings justification for the improvement is documented by industry engineering standards.
5. A facility alteration which includes expenditures that are required to properly implement other energy conservation measures may be included as part of a guaranteed energy savings performance contract without being included in the savings guarantee. In such case, notwithstanding any other provision of law, the installation of these additional measures may be supervised by the contractor performing the guaranteed energy savings performance contract.
6. The guaranteed energy savings performance contract shall include an agreement for the provision of measurement and verification services to be paid for from the energy and operational cost savings generated by the project for the term of the contract. It may include maintenance services for the measures installed under the contract. The measurement and verification services shall be performed in accordance with industry standard methods for measuring and verifying savings and equipment performance. Savings which are stipulated shall be specifically noted as such in the guaranteed energy savings performance contract.
7. Upon execution of a guaranteed energy savings performance contract that reduces the governmental unit's annual electric usage by more than 100 megawatt hours, the governmental unit shall provide written notice to its utility providers describing the energy conservation measures to be installed. Additionally, the authority shall make publicly available an annual list of all guaranteed energy savings performance contracts that are signed in each calendar year.

(Code 1981, §50-37-4, enacted by Ga. L. 2010, p. 1091, § 2/SB 194; Ga. L. 2012, p. 59, § 4/SB 113.)

The 2012 amendment, effective April 12, 2012, in subsection (g), deleted "Reporting." preceding "Upon execution" at the beginning and inserted "that reduces the governmental unit's annual electric usage by more than 100 megawatt hours" in the first sentence.