Under sub. (2), statutorily-authorized intergovernmental agreements for purchases of services are exempt from municipal competitive bidding requirements and procedures. OAG 5-09
Energy savings performance contracting. 66.0133(1)(a)
“Energy conservation measure" means a facility alteration or training, service, or operations program designed to reduce energy consumption or operating costs, conserve water resources, improve metering accuracy, or ensure state or local building code compliance.
“Operational savings" means savings from costs eliminated or avoided as a result of installing equipment or providing services.
“Performance contract" means a contract for the evaluation and recommendation of energy conservation and facility improvement measures, and for the implementation of these measures.
“Qualified provider" means a person, other than a local governmental unit, who is experienced in the design, implementation and installation of energy conservation and facility improvement measures and who has the ability to provide labor and material payment and performance bonds equal to the maximum amount of any payments due under a performance contract entered into by the person.
Except as provided under subd. 2.
, any local governmental unit may, in accordance with this section, enter into a performance contract with a qualified provider to reduce energy or operating costs, realize operational savings, conserve water resources, ensure state or local building code compliance, or enhance the protection of property of the local governmental unit.
A performance contract with a qualified provider under this section may not allow a local governmental unit to increase the square footage of a facility unless the increase is necessary to make mechanical, electrical, or plumbing improvements in order to achieve reductions in energy consumption or to conserve water resources.
Prior to entering into a performance contract for the implementation of any energy conservation or facility improvement measure, a local governmental unit shall obtain a report from a qualified provider containing recommendations concerning the amount the local governmental unit should spend on energy conservation and facility improvement measures. The report shall contain estimates of all costs of installation, modifications, or remodeling, including costs of design, engineering, maintenance, repairs and financing. In addition, the report shall contain a guarantee specifying a minimum amount by which energy or operating costs of the local governmental unit will be reduced or energy or water metering accuracy will be improved, if the installation, modification or remodeling is performed by that qualified provider.
If, after review of the report under par. (b)
, the local governmental unit finds that the amount it would spend on the energy conservation and facility improvement measures recommended in the report is not likely to exceed the amount to be saved in energy and operation costs, or the benefits to be obtained by improved metering accuracy, over the remaining useful life of the facility to which the measures apply, the local governmental unit may enter into the contract.
Notwithstanding ss. 27.065 (5) (a)
, 43.17 (9) (a)
, 59.52 (29) (a)
, 59.70 (11)
, 60.47 (2)
, 60.77 (6) (a)
, 62.15 (1)
, 66.0131 (2)
, 66.0923 (10)
, 66.0925 (10)
, 66.0927 (11)
, 66.1333 (5) (a) 2.
, 200.11 (5) (d)
and 200.47 (2)
, before entering into a performance contract under this section, a local governmental unit shall solicit bids or competitive sealed proposals from qualified providers. A local governmental unit may only enter into a performance contract with a qualified provider if the contract is awarded by the governing body of the local governmental unit and if the qualified provider agrees to sign the performance contract and all contracts with subcontractors, including subcontractors who provide billing services under the performance contract. The governing body shall give at least 10 days' notice of the meeting at which the body intends to award a performance contract. The notice shall include a statement of the intent of the governing body to award the performance contract, the names of all potential parties to the proposed performance contract, and a description of the energy conservation and facility improvement measures included in the performance contract and an explanation of how these measures will generate operational savings sufficient to pay for the cost of the measures. At the meeting, the governing body shall review and evaluate the bids or proposals submitted by all qualified providers and may award the performance contract to the qualified provider that best meets the needs of the local governmental unit, which need not be the lowest cost provider.
Installment payment and lease-purchase agreements.
A local governmental unit may enter into an installment payment contract or lease-purchase agreement for the purchase and installation of energy conservation or facility improvement measures.
Payment schedule; savings.
Each performance contract shall provide that all payments to a qualified provider, except obligations on termination of the contract before its expiration, shall be made no later than the date on which the contract expires. Energy savings shall be guaranteed by the qualified provider for the entire term of the performance contract and may not be guaranteed by a third party. Unless otherwise agreed by the parties, every performance contract shall assume an annual increase of 3 percent in the cost of relevant utility services incurred by the local governmental unit.
Terms of contracts.
A performance contract may extend beyond the fiscal year in which it becomes effective, subject to appropriation of moneys, if required by law, for costs incurred in future fiscal years.
Allocation of obligations.
Subject to appropriations as provided in sub. (6)
, each local governmental unit shall allocate sufficient moneys for each fiscal year to make payment of any amounts payable by the local governmental unit under performance contracts during that fiscal year.
Each qualified provider under a performance contract shall provide labor and material payment and performance bonds in an amount equivalent to the maximum amount of any payments due under the contract, including payments for work performed by other persons that is necessary to achieve the required guaranteed energy or operational savings.
Use of moneys.
Unless otherwise provided by law or ordinance, if a local governmental unit has funding designated for operating and capital expenditures, the local governmental unit may use moneys designated for operating or capital expenditures to make payments under any performance contract, including installment payments or payments under lease-purchase agreements.
During the entire term of each performance contract, the qualified provider entering into the contract shall monitor the reductions in energy consumption and cost savings attributable to the energy conservation and facility improvement measures installed under the contract, and shall periodically prepare and provide a report to the local governmental unit entering into the contract documenting the reductions in energy consumption and cost savings to the local governmental unit.
Energy conservation measures.
Energy conservation measures under this section may include the following:
Insulation of a building structure or systems within a building.
Storm windows or doors, caulking or weather stripping, 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.
Automated or computerized energy control and facility management systems or computerized maintenance management systems.
Heating, ventilating or air conditioning system modifications or replacements.
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 for the lighting system after the proposed modifications are made.
Cogeneration systems that produce steam or forms of energy such as heat, as well as electricity, for use primarily within a building or complex of buildings.
Life safety improvements or systems required to comply with the federal Americans with Disabilities Act.
Replacement or improvement of energy or water metering systems.
Measures to improve indoor or outdoor water conservation, including measures related to water recycling and reuse, and systems or equipment that implement those measures.
Measures to improve indoor air quality to meet applicable state and local building code requirements.
Any other facility improvement measure that is designed to provide long-term energy or operating cost reductions or compliance with state or local building codes.
History: 1995 a. 27
; 1999 a. 150
; Stats. 1999 s. 66.0133; 2009 a. 173
; 2015 a. 55
Labor peace agreements prohibited. 66.0134(1)(b)
“Local governmental unit” means a city, village, town, county, school district, including a 1st class city school district, technical college district, sewerage district, drainage district, or any other special purpose district in this state, or any other public or quasi-public corporation, officer, board, or other public body, an agency or corporation of a political subdivision or special purpose district, or a combination or subunit of any of the foregoing.
Neither the state nor a local governmental unit may enact a statute or ordinance; adopt a policy or regulation; or impose a contract, zoning, permitting, or licensing requirement, or any other condition including a condition of any regulatory approval; that would require any person to accept any provision that is a mandatory or nonmandatory subject of collective bargaining under state or federal labor laws.
Neither the state nor a local governmental unit, nor any of its employees, may require any person to waive the person's rights under state or federal labor laws, or compel or attempt to compel a person to agree to waive the person's rights under state or federal labor laws as a condition of any regulatory approval or other approval by the local governmental unit.
Any agreement entered into, renewed, modified, or extended on or after April 18, 2018, between any person and any labor organization in violation of this section is void.
History: 2017 a. 327
Interest on late payments. 66.0135(1)(a)
“Agency" means any office, department, board, commission or other body under the control of the governing body of a local governmental unit which expends moneys or incurs obligations on behalf of the local governmental unit.
“Good faith dispute" means any of the following:
A contention by an agency, principal contractor or subcontractor that goods delivered or services rendered were of a lesser quantity or quality than ordered or specified by contract, were faulty or were installed improperly.
Any other reason giving cause for the withholding of payment by an agency, principal contractor or subcontractor until the dispute is settled.
“Local governmental unit" means a political subdivision of this state, a special purpose district in this state, an agency or corporation of a political subdivision or special purpose district, or a combination or subunit of any of the foregoing.
Interest payable to principal contractors. 66.0135(2)(a)
Except as provided in sub. (4)
or as otherwise specifically provided, an agency that does not pay timely the amount due on an order or contract shall pay interest on the balance due from the 31st day after receipt of a properly completed invoice or receipt and acceptance of the property or service under the order or contract, whichever is later, or, if the agency does not comply with sub. (7)
, from the 31st day after receipt of an improperly completed invoice or receipt and acceptance of the property or service under the order or contract, whichever is later, at the rate specified in s. 71.82 (1) (a)
For the purposes of par. (a)
, a payment is timely if the payment is mailed, delivered or transferred by the later of the following:
The date specified on a properly completed invoice for the amount specified in the order or contract.
Within 30 days after receipt of a properly completed invoice or receipt and acceptance of the property or service under the order or contract, or, if the agency does not comply with sub. (7)
, within 30 days after receipt of an improperly completed invoice or receipt and acceptance of the property or service under the order or contract, whichever is later.
Interest payable to subcontractors. 66.0135(3)(a)
Except as provided in sub. (4) (e)
or as otherwise specifically provided, principal contractors that engage subcontractors to perform part of the work on an order or contract from an agency shall pay subcontractors for satisfactory work in a timely fashion. A payment is timely if it is mailed, delivered or transferred to the subcontractor no later than 7 days after the principal contractor's receipt of any payment from the agency.
If a subcontractor is not paid in a timely fashion, the principal contractor shall pay interest on the balance due from the 8th day after the principal contractor's receipt of any payment from the agency, at the rate specified in s. 71.82 (1) (a)
Subcontractors receiving payment under this subsection shall pay lower-tier subcontractors, and be liable for interest on late payments, in the same manner as principal contractors are required to pay subcontractors in pars. (a)
does not apply to any of the following:
Any portion of an order or contract for which the payment, from federal moneys, has not been received.
An order or contract that is subject to late payment interest or another late payment charge required by another law or rule specifically authorized by law.
An order or contract between 2 or more agencies of the same local governmental unit.
An order or contract which provides for the time of payment and the consequences of nontimely payment, if any deviation from the deadlines established in sub. (2)
appears in the original bid or proposal.
An order or contract under which the amount due is subject to a good faith dispute if, before the date on which payment is not timely, notice of the dispute is sent by 1st class mail, personally delivered or sent in accordance with the procedure specified in the order or contract.
Appropriation from which paid.
An agency that pays interest under this section shall pay the interest only from the appropriation for administration of the program under which the order or contract was made or entered into, unless otherwise directed by the governing body of the local governmental unit.
Notwithstanding s. 814.04 (1)
, in an action to recover interest due under this section, the court shall award the prevailing party reasonable attorney fees.
If an agency receives an improperly completed invoice, the agency shall notify the sender of the invoice within 10 working days after it receives the invoice of the reason that it is improperly completed.
History: 1989 a. 233
; 1999 a. 150
; Stats. 1999 s. 66.0135.
Provision of insurance. 66.0137(1)(ac)
“Board of Regents” means the Board of Regents of the University of Wisconsin System.
“Dies in the line of duty" means a death that occurs, or occurred, as a direct and proximate result of a personal injury sustained by, or a single exposure to a hazardous material or condition experienced by, a law enforcement officer, fire fighter, or emergency medical services practitioner while he or she was engaged in a line of duty activity or that arose out of and as a result of such an individual's performance of a line of duty activity.
“Emergency medical services practitioner” has the meaning given in s. 256.01 (5)
, except that in this section it applies only to an individual who is employed directly by a political subdivision or by a joint emergency medical services department operated jointly by 2 or more political subdivisions.
“Law enforcement officer" means all of the following:
Any person employed by a political subdivision for the purpose of detecting and preventing crime and enforcing laws or ordinances and who is authorized to make arrests for violations of the laws or ordinances that the person is employed to enforce.
A special agent employed by the department of revenue who is authorized to act under s. 73.031