NRS: CHAPTER 333A - PURCHASING: STATE PERFORMANCE CONTRACTS FOR OPERATING COST-SAVINGS MEASURES

[Rev. 6/29/2024 3:41:12 PM--2023]

CHAPTER 333A - PURCHASING: STATE PERFORMANCE CONTRACTS FOR OPERATING COST-SAVINGS MEASURES

NRS 333A.005 Legislative declaration.

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.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.005 Legislative declaration. The Legislature hereby declares that it is the policy of this State to encourage, to the extent practicable, a using agency to:

1. Utilize the process set forth in this chapter to implement any operating cost-savings measure to reduce costs related to energy, water or the disposal of waste; and

2. Continually review whether the using agency could utilize the process set forth in this chapter to implement any operating cost-savings measure to reduce costs related to energy, water or the disposal of waste.

(Added to NRS by 2021, 2560)

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)

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)

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.

(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)

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)

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)

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)

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;

(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

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

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 20 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; A 2017, 1435)

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 certified or 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 20 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; 2017, 1436)

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)

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 338.013 to 338.090, inclusive. The using agency, the qualified service company, any contractor who is awarded a contract or enters into an agreement to perform the work for the performance contract, and any subcontractor who performs any portion of that work shall comply with the provisions of NRS 338.013 to 338.090, inclusive, in the same manner as if the using agency had undertaken the work or had awarded the contract.

(Added to NRS by 2003, 3058; A 2019, 713)

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.

(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)