Amendment ASA1-AB755

AB755-ASA1,8,10 (f) "Renewable resource application" means the application of a renewable resource, as defined in s. 196.374 (1) (j), at any type of premises.

AB755-ASA1,8,12 (g) "Utility" means a public utility that furnishes electricity, natural gas, or water service to retail customers.

AB755-ASA1,8,13 (h) "Utility program" means a program authorized under sub. (2).

AB755-ASA1,8,16 (i) "Water efficiency improvement" means an improvement to any type of premises that reduces the usage of water, or increases the efficiency of water usage, at the premises.

AB755-ASA1,8,23 (2) Authorization. The commission may, upon application by a utility, authorize the utility to administer, fund, or provide administrative services for a program for investing in improvements or applications for any type of premises served by the utility if the commission finds that the program is cost-effective. Participation in such a program shall be at the discretion of utilities and premises owners, and the commission may not require that a utility or premises owner participate in such a program.

AB755-ASA1,9,3 (3) Tariffs. A utility for which a program is authorized under sub. (2) shall file a tariff specifying the terms and conditions for making or installing improvements or applications at customer premises under the program. A tariff filed under this subsection shall have no effect until approved by the commission. A tariff filed by a utility under this subsection shall include all of the following:

AB755-ASA1,9,8 (a) Terms and conditions for billing customers at premises for costs incurred at the premises in making or installing improvements or applications for which investments are made. The tariff shall allow the utility to collect, and enforce payment of, the amounts billed in the same manner as amounts billed for utility service.

AB755-ASA1,9,12 (b) A contract between the utility and an owner of property benefited by an improvement or application that requires the owner to inform any property lessees who are liable for utility service that the cost of the improvement or application will appear on the lessees' utility bills.

AB755-ASA1,9,17 (c) A contract between the utility and an owner of property benefited by an improvement or application that requires the owner to inform any purchaser of the property that the purchaser, or any other person who is liable for utility service at the property, is liable for the unpaid cost of the improvement or application and that such unpaid cost will appear on utility bills for the property.

AB755-ASA1,9,18 (d) Any other term or condition required by the commission.

AB755-ASA1,9,19 (4) Costs and savings. (a) Definitions. In this subsection:

AB755-ASA1,9,21 1. "Performance contract" means a contract for the evaluation and recommendation of an improvement or application.

AB755-ASA1,9,25 2. "Qualified provider" means a person who is experienced in the design, implementation, and installation of improvements or applications 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.

AB755-ASA1,10,5 (b) In general. A premises is not eligible for a political subdivision loan or an investment for an improvement or application under a utility program unless one of the following is satisfied:

AB755-ASA1,10,7 1. An audit is performed that demonstrates that the improvement or application is cost-effective with respect to the normal operation of the premises.

AB755-ASA1,10,10 2. As determined under criteria under par. (d), the water or energy savings resulting over the expected life of the improvement or application exceed the costs of the improvement or application.

AB755-ASA1,10,12 3. The improvement or application is subject to a performance contract under par. (e).

AB755-ASA1,10,22 (c) Audits. 1. For a political subdivision loan, the political subdivision shall determine whether an audit under par. (b) 1. demonstrates that an improvement or application is cost-effective. A political subdivision shall determine that an improvement or application is cost-effective if the energy or water savings resulting over the expected life of the improvement or application exceed the costs of the political subdivision loan. After an improvement or application is made or installed, a political subdivision shall require the performance of an additional audit to verify that the improvement or application was made or installed. The commission may not promulgate rules regarding any audit preformed for or required by a political subdivision.

AB755-ASA1,11,9 2. The commission shall promulgate rules for determining whether an audit under par. (b) 1. demonstrates that an improvement or application under a utility program is cost-effective. For an improvement, the rules shall specify criteria that include the energy or water savings resulting from the improvement and a period of time not exceeding 10 years that is required for the energy or water savings to equal the cost of the improvement. For an improvement or application, the rules may specify criteria that include comparing the cost of the improvement or application to the value of the premises benefited by the improvement or application. The commission shall also promulgate rules requiring the performance of an additional audit to verify that the improvement or application was installed or made and rules specifying the certification requirements a person must satisfy to perform any audit required for an improvement or application under a utility program.

AB755-ASA1,11,15 (d) Criteria. For a political subdivision loan, the political subdivision shall specify criteria for making a determination under par. (b) 2. For a utility program, the commission shall promulgate rules specifying criteria for making a determination under par. (b) 2. A political subdivision and the commission shall specify similar criteria for similar types of premises, improvements, and applications.

AB755-ASA1,12,3 (e) Performance contracts. 1. An improvement or application may be subject to a performance contract if a report is obtained from a qualified provider containing recommendations concerning the amount that should be spent on the improvement or application. 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 water, energy, or operating costs for the premises will be reduced, if the installation, modification, or remodeling is performed by that qualified provider. If, after review of the report, it is determined that the recommended spending is not likely to exceed the amount to be saved in water, energy, and operation costs over the remaining useful life of the improvement or application, the improvement or application may be subject to a performance contract.

AB755-ASA1,12,8 2. For a political subdivision loan, a political subdivision shall establish requirements and procedures for reports and performance contracts under subd. 1. The commission shall promulgate rules establishing requirements and procedures for reports and performance contracts under subd. 1. for improvements or applications under utility programs.

AB755-ASA1,12,15 (5) Contractors and subcontractors. (a) All work involved in making or installing an improvement or application under a utility program or pursuant to a political subdivision loan shall be performed by a contractor or subcontractor that the commission has included on a list of prequalified contractors and subcontractors. The commission shall approve a contractor or subcontractor for inclusion on the prequalification list only if the commission determines that the contractor or subcontractor satisfies all of the following:

AB755-ASA1,13,4 1. Agrees to pay all employees working on an improvement or application for which an investment is made under the program, or for which the political subdivision loan is made, who would be entitled to receive the prevailing wage rate under s. 66.0903 and who would not be required or permitted to work more than the prevailing hours of labor, as defined in s. 103.49 (1) (c), if the improvement or application were a project of public works under s. 66.0903, not less than the prevailing wage rate determined under s. 66.0903 (3) or (6) and not to require or permit those employees to work more than the prevailing hours of labor, except as permitted under s. 66.0903 (4) (a); to keep and permit inspection of records in the same manner as a contractor performing work on a project of public works that is subject to s. 66.0903 is required to keep and permit inspection of records under s. 66.0903 (10); and otherwise to comply with s. 66.0903 in the same manner as a contractor performing work on a project of public works that is subject to s. 66.0903 is required to comply with s. 66.0903.

AB755-ASA1,13,15 2. Agrees not to permit an employee working on an improvement or application for which an investment is made under the program or for which the political subdivision loan is made to use, possess, attempt to possess, distribute, deliver, or be under the influence of a drug, as defined in s. 103.503 (1) (d), or use or be under the influence of alcohol, while performing that work, to have in place a written program for the prevention of substance abuse among those employees in the same manner as a contractor performing work on a project of public works that is subject to s. 66.0903 is required to have in place such a written program under s. 103.503 (3), and otherwise to comply with s. 103.503 in the same manner as a contractor performing work on a project of public works that is subject to s. 66.0903 is required to comply with s. 103.503.

AB755-ASA1,13,21 3. Except as provided in par. (b), agrees, if the contractor or subcontractor employs employees in trades that are apprenticeable under subch. I of ch. 106, to sponsor an apprenticeship training program that is approved by the department of workforce development for each of those trades and to employ in each of those trades the maximum ratio of apprentices to journeymen that are permitted under standards adopted, recognized, or approved by that department.

AB755-ASA1,14,2 4. Provides the commission a detailed statement regarding related business entities if, at any time in the 3 years prior to inclusion on the prequalification list, the contractor or subcontractor has controlled or has been controlled by another corporation, partnership, or other business entity operating in the construction industry.

AB755-ASA1,14,6 5. Certifies to the commission that the contractor or subcontractor understands that, in performing work under the program or pursuant to the political subdivision loan, the contractor or subcontractor will be required to use as subcontractors only those entities that are also included on the prequalification list.

AB755-ASA1,14,8 6. Certifies to the commission that employees are not improperly classified as independent contractors in violation of federal or state law.

AB755-ASA1,14,19 7. Discloses to the commission whether in the 3 years prior to inclusion on the prequalification list the contractor or subcontractor has had any type of business, contracting, or trade license, certification, or registration revoked or suspended; been debarred by any federal state, or local government agency; defaulted on any project; committed a willful violation of federal or state safety law as determined by a final decision of a court or government agency authority; or been found by a final decision of a court or government agency to be in violation of any other law relating to its contracting business, including wage and hour laws, prevailing wage laws, environmental laws, antitrust laws, or tax laws, where the penalty for such violation resulted in the imposition of a fine, back pay damages, or any other type of penalty, in an amount of more than $10,000.

AB755-ASA1,14,21 8. Satisfies cultural competency requirements established in rules promulgated by the commission.

AB755-ASA1,15,7 9. Certifies to the commission that not less than 30 percent of the total hours of work performed by the contractor or subcontractor on an individual improvement or application will be performed by individuals who, if the work is performed in a 1st or 2nd class city, reside in the 1st or 2nd class city, or, if the work is not performed in a 1st or 2nd class city, reside in the county in which the work is performed, and whose annual income during the year prior to performance of the work did not exceed 200 percent of the poverty level under the federal poverty income guidelines of the federal Department of Health and Human Services under 42 USC 9902 (2). The commission shall promulgate rules for making certifications under this subdivision. The rules shall provide that, once a contractor or subcontractor makes a certification under this subdivision, the certification is valid for 3 years.

AB755-ASA1,15,12 10. Certifies to the commission that an application for inclusion on the prequalification list has been executed by a principal or person employed by the applicant who has sufficient knowledge to address all matters in the application, including an attestation stating, under the penalty of perjury, that all information submitted is true, complete, and accurate.

AB755-ASA1,15,19 (b) The commission may include on the prequalification list under par. (a) a contractor or subcontractor who does not satisfy the requirement under par. (a) 3. The commission shall promulgate rules allowing a contractor or subcontractor who does not satisfy the requirement to perform work on an improvement or application for which an investment is made under a utility program or for which a political subdivision loan is made, only if no contractor or subcontractor who satisfies the requirement is available to perform the work.

AB755-ASA1,15,23 (c) Based on good cause shown by the disclosures required under par. (a) 7., the commission may disapprove a contractor or subcontractor for inclusion in the prequalification list under par. (a). The commission shall promulgate rules defining "good cause" for purposes of this paragraph.

AB755-ASA1,16,6 (d) A contractor or subcontractor shall report to the commission any material change to its business or operations that are relevant to the commission's approval to include the contractor or subcontractor in the prequalification list under par. (a). A contractor or subcontractor shall make a report required under this paragraph no later than 15 days after obtaining knowledge of the material change. If a contractor or subcontractor violates this paragraph, the commission may revoke the contractor's or subcontractor's inclusion in the prequalification list for a period of no more than 3 years.

AB755-ASA1,16,11 (e) Except for conditional approvals under par. (f), a contractor's or subcontractor's inclusion in the prequalification list under par. (a) is valid for 2 years, unless the commission revokes the inclusion under par. (d). The commission shall promulgate rules for a contractor or subcontractor to apply every 2 years for the commission to renew an approval for inclusion in the prequalification list.

AB755-ASA1,16,15 (f) The commission may conditionally approve a contractor or subcontractor for inclusion in the prequalification list under par. (a) for a period not exceeding 2 years. The commission shall set forth in writing any conditions of an approval made under this paragraph.

AB755-ASA1,16,18 (g) Prior to disapproving a contractor or subcontractor for inclusion in the prequalification list under par. (a), the commission shall provide the contractor or subcontractor with notice and opportunity to be heard.

AB755-ASA1,16,23 (h) The commission shall make the prequalification list under par. (a) available to the public. The prequalification list shall show the name, address, identification number assigned by the commission, and approval renewal date for each contractor or subcontractor. The commission shall update the prequalification list on a monthly basis and make the updated lists available to the public.

AB755-ASA1,17,4 (i) The commission shall periodically review the qualifications and performance of contractors and subcontractors included in the prequalification list under par. (a). For good cause shown, the commission may, after notice and opportunity to be heard, revoke a contractor's or subcontractor's inclusion on the prequalification list. The commission shall promulgate rules defining "good cause" for purposes of this paragraph.

AB755-ASA1,17,11 (6) Utilities. (a) A utility for which the commission authorizes a program under sub. (2) and approves a tariff under sub. (3) may include a separate line item on bills of a customer at premises benefited by an improvement or application made or installed under the program that compares the costs of the program borne by the customer with the energy or water savings resulting from the improvement or application. Notwithstanding s. 218.04, a utility need not obtain a license as a collection agency for this billing practice.

AB755-ASA1,17,17 (am) The commission shall ensure in rate-making orders that a utility recovers from its ratepayers the amounts the utility spends for a utility program that exceed the amounts recovered from billing customers for improvements and applications under a tariff approved under sub. (3). The commission shall ensure that a utility is allowed to earn a rate of return on the amounts recovered under this paragraph that is equal to the utility's overall rate of return authorized by the commission.

AB755-ASA1,17,21 (b) Any costs that an energy utility, as defined in s. 196.374 (1) (e), incurs to administer, fund, or provide administrative services for an investment made in accordance with a tariff approved under sub. (3) shall be in addition to the amounts the commission requires the energy utility to spend under s. 196.374 (3) (b) 2.

AB755-ASA1,17,24 (c) A utility shall use any payments received for improvements and applications from customers pursuant to a utility program to invest in other improvements and applications under the program.

AB755-ASA1,18,2 (d) 1. A utility shall prioritize the utility's spending on a utility program in the following manner:

AB755-ASA1,18,8 a. If the source of the spending is a federal or state grant, the utility shall give the greatest priority to improvements and applications at residential premises and the least priority to improvements and applications at nonresidential premises of customers with the greatest demand for service provided by the utility. If the source of the spending is a federal grant, the utility shall comply with this subd. 1. a. to the extent allowed under the federal law authorizing the grant.

AB755-ASA1,18,12 b. If the source of the spending is not a federal or state grant, the utility shall give the greatest priority to improvements and applications at nonresidential premises of customers with the greatest demand for service provided by the utility and the least priority to improvements and applications at residential premises.

AB755-ASA1,18,15 c. A utility shall prioritize improvements and applications that have a similar priority under subd. 1. a. and b. by giving the greatest priority to improvements and applications that are subject to performance contracts under sub. (4) (e).

AB755-ASA1,18,18 2. The commission shall promulgate rules implementing the requirements of subd. 1. and requiring utilities to make annual reports to the commission regarding their implementation of the requirements.

AB755-ASA1,18,24 (7) Political subdivisions. (a) A political subdivision shall use any repayments of political subdivision loans to make additional political subdivision loans. This paragraph applies only to political subdivision loans made from state or federal grant moneys and, with respect to political subdivision loans made from federal grant moneys, only to the extent allowed under the federal law authorizing the grant.

AB755-ASA1,19,7 (b) A political subdivision shall prioritize spending on political subdivision loans in a manner that gives the greatest priority to improvements and applications at residential premises and the least priority to improvements and applications at nonresidential premises of utility customers with the greatest demand for service provided by utilities. This paragraph applies only to spending the source of which is a federal or state grant and, with respect to a federal grant, only to the extent allowed under the federal law authorizing the grant.

AB755-ASA1,19,10 (c) A political subdivision shall prioritize improvements and applications that have a similar priority under par. (b) by giving the greatest priority to improvements and applications that are subject to performance contracts under sub. (4) (e).

AB755-ASA1, s. 17 Section 17 . 227.01 (13) (t) of the statutes, as affected by 2009 Wisconsin Act 28, is amended to read:

AB755-ASA1,19,17 227.01 (13) (t) Ascertains and determines prevailing wage rates under ss. 66.0903, 66.0904, 103.49, 103.50, 196.3745 (5) (a) 1., and 229.8275, except that any action or inaction which ascertains and determines prevailing wage rates under ss. 66.0903, 66.0904, 103.49, 103.50, 196.3745 (5) (a) 1., and 229.8275 is subject to judicial review under s. 227.40.

AB755-ASA1, s. 18 Section 18. 709.03 (form) C. 25m. of the statutes is created to read:

AB755-ASA1,19,19 709.03 (form) - See PDF for table

AB755-ASA1, s. 19 Section 19 . 946.15 (1) of the statutes, as affected by 2009 Wisconsin Act 28, is amended to read:

AB755-ASA1,20,18 946.15 (1) Any employer, or any agent or employee of an employer, who induces any person who seeks to be or is employed pursuant to a public contract as defined in s. 66.0901 (1) (c) or who seeks to be or is employed on a project on which a prevailing wage rate determination has been issued by the department of workforce development under s. 66.0903 (3), 66.0904 (4), 103.49 (3), 103.50 (3), 196.3745 (5) (a) 1., or 229.8275 (3) or by a local governmental unit, as defined in s. 66.0903 (1) (d), under s. 66.0903 (6) or 66.0904 (6) to give up, waive, or return any part of the compensation to which that person is entitled under his or her contract of employment or under the prevailing wage rate determination issued by the department or local governmental unit, or who reduces the hourly basic rate of pay normally paid to an employee for work on a project on which a prevailing wage rate determination has not been issued under s. 66.0903 (3) or (6), 66.0904 (4) or (6), 103.49 (3), 103.50 (3), 196.3745 (5) (a) 1., or 229.8275 (3) during a week in which the employee works both on a project on which a prevailing wage rate determination has been issued and on a project on which a prevailing wage rate determination has not been issued, is guilty of a Class I felony.

AB755-ASA1, s. 20 Section 20 . 946.15 (2) of the statutes, as affected by 2009 Wisconsin Act 28, is amended to read:

AB755-ASA1,21,17 946.15 (2) Any person employed pursuant to a public contract as defined in s. 66.0901 (1) (c) or employed on a project on which a prevailing wage rate determination has been issued by the department of workforce development under s. 66.0903 (3), 66.0904 (4), 103.49 (3), 103.50 (3), 196.3745 (5) (a) 1., or 229.8275 (3) or by a local governmental unit, as defined in s. 66.0903 (1) (d), under s. 66.0903 (6) or 66.0904 (6) who gives up, waives, or returns to the employer or agent of the employer any part of the compensation to which the employee is entitled under his or her contract of employment or under the prevailing wage determination issued by the department or local governmental unit, or who gives up any part of the compensation to which he or she is normally entitled for work on a project on which a prevailing wage rate determination has not been issued under s. 66.0903 (3) or (6), 66.0904 (4) or (6), 103.49 (3), 103.50 (3), 196.3745 (5) (a) 1., or 229.8275 (3) during a week in which the person works part-time on a project on which a prevailing wage rate determination has been issued and part-time on a project on which a prevailing wage rate determination has not been issued, is guilty of a Class C misdemeanor.

AB755-ASA1, s. 21 Section 21 . 946.15 (3) of the statutes, as affected by 2009 Wisconsin Act 28, is amended to read:

AB755-ASA1,22,5 946.15 (3) Any employer or labor organization, or any agent or employee of an employer or labor organization, who induces any person who seeks to be or is employed on a project on which a prevailing wage rate determination has been issued by the department of workforce development under s. 66.0903 (3), 66.0904 (4), 103.49 (3), 103.50 (3), 196.3745 (5) (a) 1., or 229.8275 (3) or by a local governmental unit, as defined in s. 66.0903 (1) (d), under s. 66.0903 (6) or 66.0904 (6) to permit any part of the wages to which that person is entitled under the prevailing wage rate determination issued by the department or local governmental unit to be deducted from the person's pay is guilty of a Class I felony, unless the deduction would be permitted under 29 CFR 3.5 or 3.6 from a person who is working on a project that is subject to 40 USC 3142.

AB755-ASA1, s. 22 Section 22 . 946.15 (4) of the statutes, as affected by 2009 Wisconsin Act 28, is amended to read:

AB755-ASA1,22,16 946.15 (4) Any person employed on a project on which a prevailing wage rate determination has been issued by the department of workforce development under s. 66.0903 (3), 66.0904 (4), 103.49 (3), 103.50 (3), 196.3745 (5) (a) 1., or 229.8275 (3) or by a local governmental unit, as defined in s. 66.0903 (1) (d), under s. 66.0903 (6) or 66.0904 (6) who permits any part of the wages to which that person is entitled under the prevailing wage rate determination issued by the department or local governmental unit to be deducted from his or her pay is guilty of a Class C misdemeanor, unless the deduction would be permitted under 29 CFR 3.5 or 3.6 from a person who is working on a project that is subject to 40 USC 3142.

AB755-ASA1, s. 23 Section 23. Nonstatutory provisions.

AB755-ASA1,23,5 (1) By the first day of the 4th month beginning after the effective date of this subsection, the public service commission shall, using the procedure under section 227.24 of the statutes, promulgate the rules required under section 196.3745 (4) (c) 2., (d), and (e) 2., (5) (a) 8. and 9., (b), (c), (e), and (i), and (6) (d) 2., of the statutes, as created by this act, for the period before the effective date of the permanent rules promulgated under section 196.3745 (4) (c) 2., (d), and (e) 2., (5) (a) 8. and 9., (b), (c), (e), and (i), and (6) (d) 2. of the statutes, as created by this act, but not to exceed the period authorized under section 227.24 (1) (c) and (2) of the statutes. Notwithstanding section 227.24 (1) (a), (2) (b), and (3) of the statutes, the public service commission is not required to provide evidence that promulgating a rule under this subsection as an emergency rule is necessary for the preservation of the public peace, health, safety, or welfare and is not required to provide a finding of emergency for a rule promulgated under this subsection.

AB755-ASA1,23,18 (2) If the public service commission determines to promulgate rules instead of issuing an order under section 196.374 (2) (d) of the statutes, as created by this act, then, by the first day of the 4th month beginning after the effective date of this subsection, the public service commission shall, using the procedure under section 227.24 of the statutes, promulgate rules under section 196.374 (2) (d) of the statutes, as created by this act, for the period before the effective date of the permanent rules promulgated under section 196.374 (2) (d) of the statutes, as created by this act, but not to exceed the period authorized under section 227.24 (1) (c) and (2) of the statutes. Notwithstanding section 227.24 (1) (a), (2) (b), and (3) of the statutes, the public service commission is not required to provide evidence that promulgating a rule under this subsection as an emergency rule is necessary for the preservation of the public peace, health, safety, or welfare and is not required to provide a finding of emergency for a rule promulgated under this subsection.

AB755-ASA1,24,5 (3) By the first day of the 4th month beginning after the effective date of this subsection, the department of workforce development shall, using the procedure under section 227.24 of the statutes, promulgate the rules required under section 106.06 of the statutes, as created by this act, for the period before the effective date of the permanent rules promulgated under section 106.06 of the statutes, as created by this act, but not to exceed the period authorized under section 227.24 (1) (c) and (2) of the statutes. Notwithstanding section 227.24 (1) (a), (2) (b), and (3) of the statutes, the department of workforce development is not required to provide evidence that promulgating a rule under this subsection as an emergency rule is necessary for the preservation of the public peace, health, safety, or welfare and is not required to provide a finding of emergency for a rule promulgated under this subsection.

AB755-ASA1, s. 24 Section 24. Initial applicability.

AB755-ASA1,24,9 (1) The treatment of sections 66.0627 (1) (a) and (d) and (8) and 196.3745 of the statutes first applies to loans made by political subdivisions on the effective date of this subsection.

AB755-ASA1,24,11 (2) The treatment of section 196.3745 (6) (d) 1. a. and (7) (b) of the statutes first applies to grants received after the effective date of this subsection.

AB755-ASA1,24,14 (3) The treatment of section 709.03 (form) C. 25m. of the statutes first applies to original real estate condition reports that are furnished on the effective date of this subsection.

AB755-ASA1,24,15 (End)