§36-42 Vehicle fleet performance contracts for vehicle fleet energy efficiency programs. (a) All agencies shall identify and evaluate vehicle fleet energy efficiency programs that the agency may implement using vehicle fleet performance contracts.

(b) Any agency may enter into a multi-year vehicle fleet performance contract for the purpose of undertaking or implementing a vehicle fleet energy efficiency program and acquiring vehicles, vehicle fleets, necessary vehicle charging or fueling infrastructure, and renewable energy systems that supply charging or fueling infrastructure.

(c) Any agency evaluating and implementing an energy performance contract under section 36-41 may incorporate vehicle fleet operational and fuel cost-savings measures into that energy performance contract; provided that these measures comply with the contracting provisions for vehicle fleet performance contracts provided for in subsection (e)(6), (7), and (8).

(d) A vehicle fleet performance contract for vehicle fleet energy efficiency may include financing options, including leasing, lease-purchase, financing agreements, third-party joint ventures, guaranteed-savings plans, vehicle or vehicle fleet service contracts, or any combination thereof. Except as otherwise provided by law, the agency that is responsible for a particular vehicle fleet shall review and approve vehicle fleet performance contract arrangements.

(e) Notwithstanding any law relating to the award of public contracts to the contrary, any agency desiring to enter into a vehicle fleet performance contract, pursuant to this section, shall comply with the following:

(1) The agency shall issue a public request for proposals, advertised in the same manner as provided in chapter 103D, concerning the provision of the vehicle fleet or the design, operation, and maintenance of a vehicle fleet energy efficiency program, fleet vehicles, necessary charging or fueling infrastructure, or renewable energy systems that supply charging or fueling infrastructure; provided that the request for proposals shall contain terms and conditions relating to the submission of proposals, evaluation and selection of proposals, financial terms, legal responsibilities, and any other matters as may be required by law or determined by the agency to be appropriate;

(2) Upon receiving responses to the request for proposals pursuant to paragraph (1), the agency may select the most qualified proposal or proposals on the basis of the experience and qualifications of the proposers, technical approach, financial arrangements, overall benefits to the agency, and any other factors determined by the agency to be relevant and appropriate;

(3) The agency may negotiate and enter into a vehicle fleet performance contract with the person or company whose proposal is selected as the most qualified based on the criteria established by the agency pursuant to paragraph (2);

(4) The term of the vehicle fleet performance contract shall not exceed twenty years;

(5) The vehicle fleet performance contract shall contain the following annual allocation dependency clause: "The continuation of this contract is contingent upon the appropriation of funds to fulfill the requirements of the contract by the applicable funding authority. If that authority fails to appropriate sufficient funds to provide for the continuation of the contract, the contract shall terminate on the last day of the fiscal year for which allocations were made";

(6) The agency may include in the vehicle fleet performance contract a requirement that the agency shall ultimately receive title to the vehicles, vehicle charging and fueling infrastructure, and renewable energy systems that supply charging or fueling infrastructure being financed under the contract;

(7) The agency shall include in the vehicle fleet performance contract a requirement that the total annual payments for vehicle fleet operational and fuel cost-savings measures shall not exceed total vehicle fleet operational and fuel cost savings achieved by the implementation of the measures;

(8) For any guaranteed-savings plan, the payment obligation for each year of the contract, including the year of acquisition, shall be guaranteed by the private sector person or company to be less than the annual vehicle fleet operational and fuel cost savings attributable under the contract to the vehicles and necessary charging or fueling infrastructure; provided that this guarantee, at the option of the agency, shall be a bond or insurance policy, or other type of guarantee determined by the agency to be sufficient to provide a similar level of assurance to that of a bond or insurance policy; and provided further that, if the actual annual verified savings are less than the annual amount guaranteed by the vehicle fleet company, the vehicle fleet company, within thirty days of being invoiced, shall pay the agency, or cause the agency to be paid, the difference between the guaranteed amount and the actual verified amount; and

(9) No vehicle, vehicle fleet, vehicle charging or fueling infrastructure, or renewable energy system contracted for or procured under a vehicle fleet performance contract shall qualify for or claim a state tax credit, state rebate, or other state financial incentive of any kind.

(f) For the purposes of this section:

"Agency" means any executive department, independent commission, board, bureau, office, or other establishment of the State or any county government, the judiciary, the University of Hawaii, or any quasi-public institution that is supported in whole or in part by state or county funds.

"Energy performance contract" shall have the same meaning as in section 36-41.

"Financing agreement" shall have the same meaning as in section 37D-2.

"Guaranteed-savings plan" means an agreement under which a private sector person or company undertakes to design, operate, and maintain a vehicle fleet energy efficiency program and related vehicle fleet operational and fuel cost-savings measures for an agency and the agency agrees to pay a contractually specified amount of verified vehicle fleet operational and fuel cost savings.

"Vehicle" means every device in, upon, or by which any person or property is or may be transported or drawn upon a highway.

"Vehicle fleet operational and fuel cost savings" means a measurable decrease in the operational and maintenance costs of vehicles that is associated with fuel or maintenance based on higher efficiency ratings or alternative fueling methods, including but not limited to savings from the reduction in maintenance requirements and a reduction in or the elimination of projected fuel purchase expenses as a direct result of investment in electric or alternative fuel vehicles, vehicle charging or fueling infrastructure, and renewable energy systems that supply vehicle charging or fueling infrastructure.

"Vehicle fleet operational and fuel cost-savings measure" means any acquisition, installation, modification, or service that is designed to reduce energy consumption and related operating costs in vehicles and includes the following:

(1) Vehicle purchase or lease costs, either in full or in part; and

(2) Charging or fueling infrastructure, including renewable energy systems that supply this infrastructure, necessary to charge or fuel alternative fuel vehicles included in a vehicle fleet performance contract.

"Vehicle fleet performance contract" means an energy performance contract, shared-savings contract, or any other agreement in which vehicle fleet operational and fuel cost savings are used to pay for the cost of vehicles or associated capital investments in charging or fueling infrastructure.

"Verified" means the technique used in the determination of baseline vehicle fleet operational and fuel costs, post-vehicle fleet energy efficiency program vehicle fleet operational and fuel costs, and vehicle fleet operational and fuel cost savings, including engineering calculations, metering and monitoring, meter analysis, computer simulations, mathematical models, and agreed-upon stipulations by the customer and the vehicle fleet company. [L 2019, c 144, §2]