Bill Text: GA SB113 | 2011-2012 | Regular Session | Introduced

NOTE: There are more recent revisions of this legislation. Read Latest Draft

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Bill Title: Local government; municipal corporations; contracts; does not change/conflict with any existing authority

Sponsorship: Partisan Bill (Republican 1)

Status: (Passed) 2012-04-12 - Effective Date [SB113 Detail]

Download: Georgia-2011-SB113-Introduced.html

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11 LC 25 5809

Senate Bill 113

By: Senator Carter of the 1st

A BILL TO BE ENTITLED
AN ACT

To provide for local government contracting powers and related requirements; to amend Title 36 of the Official Code of Georgia Annotated, relating to local government, so as to clarify that the authority of municipal corporations to enter into certain contracts is in addition to and does not change or conflict with any otherwise existing authority to enter into such contracts; to change certain provisions relating to disposition of municipal property generally; to change certain provisions relating to definitions relative to public works bidding; to amend Chapter 37 of Title 50 of the Official Code of Georgia Annotated, relating to guaranteed energy savings performance contracts, so as to clarify that the authority of counties and municipal corporations to enter into such contracts is in addition to and does not change or conflict with any otherwise existing authority to enter into such contracts; to provide for definitions; to change certain provisions relating to government units entering into guaranteed energy savings performance contracts; to change certain provisions relating to guaranteed energy savings contracts provisions; to change certain provisions relating to review of capital improvement projects; to provide an effective date; to repeal conflicting laws; and for other purposes.

BE IT ENACTED BY THE GENERAL ASSEMBLY OF GEORGIA:

SECTION 1.

Title 36 of the Official Code of Georgia Annotated, relating to local government, is amended by revising subsection (l) of Code Section 36-37-6, relating to disposition of municipal property generally, as follows:

"(l)(1) In addition to any other authorization or power, Where not otherwise authorized by its charter or other applicable law, the governing authority of any municipal corporation may lease or enter into a contract for valuable consideration for the use, operation, or management of any real or personal property of the municipal corporation; provided, however, that pursuant to the power granted by this subsection. The authority of any municipal corporation granted pursuant to its charter or other applicable law to enter into leases or contracts for the use, operation, or management of any real or personal property of the municipal corporation shall not be affected by this subsection and it shall not apply to any contracts or leases entered into pursuant to such authority. Where a municipal charter or other applicable law provides no authorization for leasing or contracting for the use, operation, or management of any real or personal property of the municipal corporation and this subsection is to be used as authorization for that purpose, the following shall apply:

(A) Any lease or contract for the use, operation, or management of any real or personal property for longer than 30 days shall be by sealed bids or by auction as provided in subsection (a) of this Code section. Easements and licenses for the use of municipal property in connection with construction projects of a municipal corporation shall be exempt from this subparagraph, provided that their term is less than one year;

(B) Nothing in this subsection shall have the effect of authorizing alienation of title to such property in derogation of rights, duties, and obligations imposed by prior deed, contract, or like document of similar import or shall cause the divesting of title to property dedicated to public use and not subsequently abandoned; and

(C) The lessee or contractee shall not mortgage or pledge the property, lease or contract the property as security for any debt, or incur any encumbrance that could result in a lien or claim of lien against the property, lease, or contract.

(2) As a condition of any Any lease or contract for the use, operation, or management of any real or personal property entered into pursuant to this subsection and for longer than 30 days shall contain the following terms:

(A) The lessee or contractee shall provide and maintain in force in effect throughout the term of such lease or contract sufficient liability insurance, in an amount not less than $1 million per claim, no aggregate, naming the municipality as a named insured;

(B) The lessee or contractee shall assume sole responsibility for or incur liability for any injury to person or property caused by any act or omission of any person while on the property and shall agree to indemnify the municipality and hold it harmless from any claim, suit, or demand made by any person; and

(C) The lessee or contractee shall agree to indemnify the municipality and hold it harmless from any claim, suit, or demand arising out of any improvements to the property or any indebtedness or obligations incurred by the lessee or contractee in making any such improvement to such property.

(3)(A) The initial term of a lease or contract for the use of real property entered into pursuant to this subsection shall be no longer than five years and there may be one renewal period of no longer than five years, after which the lease or contract shall again be subject to sealed bids or auction.

(B) When the lessee or contractee charges any person to enter or go upon the real property for recreational purposes, the consideration received by the municipal corporation for the lease or contract shall not be deemed a charge within the meaning of Article 2 of Chapter 3 of Title 51.

(C) Where real property is leased for the erection of telecommunications towers, the initial term of a lease or contract for the use of such real property shall be no longer than ten years and there may be one renewal period of no longer than ten years, after which the lease or contract shall again be subject to sealed bids or auction; provided, however, that such lease shall also include provisions for the removal of the telecommunications tower structure.

(4) This subsection Where this subsection is applicable, it shall apply to any lease or contract entered into or renewed on or after July 1, 2010 2011. This subsection shall not effect affect any provisions of subsection (k) of this Code section."

SECTION 2.

Said title is further amended by revising paragraph (12) of Code Section 36-91-2, relating to definitions relative to public works construction projects, as follows:

"(12) 'Public works construction' means the building, altering, repairing, improving, or demolishing of any public structure or building or other public improvements of any kind to any public real property other than those projects covered by Chapter 4 of Title 32 or by Chapter 37 of Title 50. Such term does not include the routine operation, repair, or maintenance of existing structures, buildings, or real property, or any energy savings performance contract or any improvements or installations performed as part of an energy savings performance contract."

SECTION 3.

Chapter 37 of Title 50 of the Official Code of Georgia Annotated, relating to guaranteed energy savings performance contracts, is amended by revising paragraph (6) of Code Section 50-37-2, relating to definitions relative to guaranteed energy savings performance contracts, as follows:

"(6) 'Governmental unit' means any officer, employee, authority, board, bureau, commission, department, agency, or institution of a state or local government agency, including, but not limited to, any state agency, state-aided institution, or any county, city, district, municipal corporation, municipality, municipal authority, political subdivision, or school district, educational institution, incorporated town, county institution district, other incorporated district, or other public instrumentality which has the authority to contract for the construction, reconstruction, alteration, or repair of any public building or other public work."

SECTION 4.

Said chapter is further amended by revising Code Section 50-37-3, relating to governmental units entering into guaranteed energy savings performance contracts, as follows:

"50-37-3.

(a) A Where not otherwise authorized by another provision of general law or local Act, a governmental unit may enter into a guaranteed energy savings performance contract with a qualified provider in accordance with the provisions of this chapter. The provisions of this chapter shall apply only to contracts entered into by a governmental unit pursuant to the authority granted by this chapter or in accordance with another statutorily authorized procurement process.

(b) If in accordance with applicable law the award of a contract by a governmental unit requires action at a public meeting, a governmental unit may award a guaranteed energy savings performance contract at a public meeting, if it has provided public notice in the manner prescribed under applicable law relating to open meetings, and the notice shall include the names of the parties to the contract and the purpose of the contract. For governmental units that are not required to take actions on contracts at public meetings, the governmental unit may award a guaranteed energy savings performance contract in accordance with the procedures adopted by the governmental unit and the requirements of all applicable laws Reserved.

(c) Selection of qualified energy services provider. The When a governmental unit is acting pursuant to the power granted by this chapter and not under any otherwise applicable law, the process of implementing guaranteed energy savings performance contracts for governmental units shall include be subject to the following:

(1) Prequalification of qualified energy services providers. The authority shall be authorized to assemble a list of prequalified energy services providers. The director shall attempt to use objective criteria in the selection process. The criteria for evaluation shall include the following factors to assess the capability of the qualified energy services provider in the areas of design, engineering, installation, maintenance, and repairs associated with guaranteed energy savings performance contracts; post-installation postinstallation project monitoring, data collection, and verification of and reporting of savings; overall project experience and qualifications; management capability; ability to access long-term sources of project financing; experience with projects of similar size and scope; and other factors determined by the director to be relevant and appropriate and relate to the ability to perform the project. The prequalification term of the established list of qualified energy service providers shall be three years. The director shall again assemble a list of prequalified energy service providers every three years from the commencement of each prequalification term. A qualified energy services provider may be removed from the list upon a determination by the director that said provider fails to meet the criteria for continued inclusion; and

(2) Request for proposals. Before entering into a guaranteed energy savings performance contract under this chapter, a governmental unit may and a state agency shall issue a request for proposals from at least three qualified energy services providers on the prequalifications list prepared and maintained by the director. A governmental unit may thereafter award the guaranteed energy savings performance contract to the qualified energy services provider that best meets the needs of the governmental unit, which need not be the lowest cost provided. A preliminary technical proposal shall be prepared by the qualified energy services provider in response to the request for proposals. Factors to be included in selecting the most qualified energy services provider for award of the guaranteed energy savings performance contract shall include, but not be limited to, the comprehensiveness of the proposal, comprehensiveness of cost-saving measures, experience, quality of technical approach, overall benefits to the governmental unit, and other factors determined by the governmental unit to be relevant to the implementation of the project.

(d) The governmental unit shall select the qualified energy services provider that best meets the needs of the governmental unit in accordance with criteria established by the governmental unit. For governmental units that are not required to take actions on contracts at public meetings, the governmental unit shall provide public notice of the award of the guaranteed energy savings performance contract within 30 days. The notice shall include the names of the parties to the contract and the purpose of the contract. For governmental units that are required to take actions on contracts at public meetings, the public notice shall be made at least ten days prior to the meeting. After reviewing the proposals pursuant to subsection (e) of this Code section, a governmental unit may enter into an investment grade energy audit agreement with the selected qualified energy services provider for the provision of the energy audit report described in subsection (e) of this Code section.

(e) Before executing the guaranteed energy savings performance contract, the qualified energy services provider shall provide the governmental unit with an energy audit report summarizing recommendations for energy conservation measures based on anticipated energy, operational water, or waste-water cost savings or revenue increases resulting from the energy conservation measures. The energy audit report shall include estimates of all costs of installation, maintenance, repairs, and debt service and estimates of the amounts by which energy or operating costs will be reduced.

(f) Notwithstanding any other provision of law governing the letting of public contracts, a A governmental unit may enter into guaranteed energy savings performance contracts with each qualified energy services provider selected in accordance with the provisions of this chapter. The governmental unit may elect to implement the energy conservation measures in one or more phases with the selected qualified energy services provider."

SECTION 5.

Said chapter is further amended by revising subsection (g) of Code Section 50-37-4, relating to guaranteed energy savings contracts provisions, as follows:

"(g) Reporting. Upon execution of a guaranteed energy savings performance contract, 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 Reserved."

SECTION 6.

Said chapter is further amended by revising Code Section 50-37-6, relating to review of capital improvement projects, as follows:

"50-37-6.

Every governmental unit state agency shall periodically review all proposed capital improvement projects for potential applicability of this chapter and shall first consider proceeding with a guaranteed energy savings performance contract under this chapter where appropriate."

SECTION 7.

This Act shall become effective upon its approval by the Governor or upon its becoming law without such approval.

SECTION 8.

All laws and parts of laws in conflict with this Act are repealed.