Bill Text: NJ S2985 | 2012-2013 | Regular Session | Introduced
Bill Title: "Government Energy Reliability and Savings Public-Private Partnership Act."
Spectrum: Partisan Bill (Democrat 2-0)
Status: (Introduced - Dead) 2013-11-14 - Transferred to Senate Economic Growth Committee [S2985 Detail]
Download: New_Jersey-2012-S2985-Introduced.html
Sponsored by:
Senator DONALD NORCROSS
District 5 (Camden and Gloucester)
Senator JIM WHELAN
District 2 (Atlantic)
SYNOPSIS
"Government Energy Reliability and Savings Public-Private Partnership Act."
CURRENT VERSION OF TEXT
As introduced.
An Act concerning governmental energy public-private partnership agreements and supplementing Title 52 of the Revised Statutes.
Be It Enacted by the Senate and General Assembly of the State of New Jersey:
1. This act shall be known and may be cited as the "Government Energy Reliability and Savings Public-Private Partnership Act."
2. a. The Legislature finds and declares that:
(1) It is the public policy of this State to assure that the State's energy infrastructure is developed and maintained in a manner that assures, to the greatest extent possible, the adequate, reliable, and continuing delivery of energy services to the State and, in particular, to the critical governmental facilities that provide necessary lifeline services to the State's citizens and businesses;
(2) The increasing magnitude and frequency of weather events, such as Hurricane Irene and Superstorm Sandy, and the devastation they inflicted on the State, have revealed the vulnerability, inadequacies, and obsolescence of the State's energy infrastructure, which has failed, sometimes for prolonged periods of time, to provide adequate, reliable, and continuing service to the State and its citizens and businesses;
(3) These weather events, and the current condition of the State's aging energy infrastructure, underscore the substantial and immediate need for the State to improve the reliability of energy services provided to critical State, county, and municipal facilities to provide lifeline services, including medical facilities, police and fire departments, water and wastewater treatment facilities, shelters, colleges, universities, schools, and prisons in this State;
(4) The reliability and efficiency of the State's energy infrastructure will be improved if the State encourages the development of the governmental energy-related projects contemplated by P.L. , c. (C. ) (pending before the Legislature as this bill), which will enhance the production and delivery of energy, improve the energy efficiency of governmental facilities, reduce energy costs and greenhouse gas emissions, create jobs, and promote economic development; and
(5) The need to upgrade the State's energy infrastructure comes at a time of fiscal austerity and budgetary restraint. The State continues to be impacted by a global economic crisis that has affected, and will continue to affect, all governmental entities in the State. Governmental entities have witnessed dramatic reductions in available revenues as a consequence of the economic recession and weather-related catastrophes, among other things, and the scarcity of revenues, and reduced private sector investment, which has adversely affected, and will continue to adversely affect, the ability of State, county, and municipal governmental entities to make needed investments in energy infrastructure.
b. The Legislature therefore determines that:
(1) It shall be the public policy of this State to foster governmental energy-related public-private partnerships to enable governmental entities to partner with private entities to develop needed state-of-the-art, energy-related projects that will obviate or minimize the need for capital investments in these projects by governmental entities;
(2) In order to foster the governmental energy-related projects contemplated by P.L. , c. (C. ) (pending before the Legislature as this bill), it is necessary and appropriate for the Legislature to allow public-private partnerships to be established in order to leverage private sector financial resources and expertise and to permit governmental and private entities to share the responsibilities and benefits of such projects;
(3) Current economic conditions, together with the critical and immediate need to improve the State's energy infrastructure, compel the State to pursue the energy-related public-private partnerships contemplated by P.L. , c. (C. ) (pending before the Legislature as this bill), which will enhance the reliability and efficiency of the State's energy infrastructure by introducing state-of-the-art energy technologies that will enhance fuel supply diversity, increase energy efficiency, expand the use of renewable energy resources, reduce energy costs and greenhouse gas emissions, and promote economic development and local job creation, thereby insuring a better and more prosperous future for the State and its citizens; and
(4) The energy-related public-private partnerships contemplated by P.L. , c. (C. ) (pending before the Legislature as this bill) will encourage private capital investment and leverage the technical, financial, and management expertise of the private sector to enable the governmental entities of this State, that might otherwise lack the necessary resources or expertise, to design, develop, own, manage, operate, and maintain state-of-the-art energy-related projects in partnership with private entities.
3. As used in P.L. , c. (C. ) (pending before the Legislature as this bill);
"Board" means the Board of Public Utilities or any successor agency.
"Energy P3 Unit" means the "Energy Public-Private Partnership Unit" established pursuant to section 7 of P.L. , c. (C. ) (pending before the Legislature as this bill).
"Energy-related project" or "project" means a project developed for a new or existing facility or facilities, owned by a governmental entity, that involves the use of energy efficiency, energy conservation, energy optimization, renewable energy, or demand side management measures including, but not limited to, the installation of energy efficient appliances, lighting, motors, and other energy or water conservation measures, and demand response; cogeneration and combined heat and power plants, fuel cells, district energy systems, and micro grids; Class I and Class II renewable energy resources, as those terms are defined in section 3 of P.L.1999, c.23 (C.48:3-51), including solar photovoltaic technologies, wind energy, geothermal energy, biomass, biogas, waste-to-energy and waste water-to-energy technologies, resource recovery, and hydroelectric power facilities. "Energy-related project" shall not include a self-funded energy efficiency project that is authorized pursuant to the provisions of P.L.2009, c.4 (C.18A:18A-4.6 et al.) or P.L.2012, c.55 (C.52:34-25.1 et al.).
"Governmental entity" means the State, its subdivisions, and the departments, agencies, commissions, authorities, boards and instrumentalities thereof, a county, a municipality, a board of education, a State college or university, a county community college, a regional or municipal utility or utility authority, and a municipal corporation. "Governmental entity" may include a combination of governmental entities as defined herein. "Governmental entity" shall not mean a municipal electric utility established pursuant to R.S.40:62-12.
"Private entity" means a person, a combination of persons, a business entity, a combination of business entities, or a combination of persons and business entities. "Private entity" shall not include a public utility as defined in R.S.48:2-13.
"Public-private partnership agreement" or "agreement" means an agreement entered into by a governmental entity and a private entity pursuant to section 4 of P.L. , c. (C. ) (pending before the Legislature as this bill) for the purposes of undertaking an energy-related project.
4. A governmental entity may enter into a public-private partnership agreement with a private entity, pursuant to the provisions of P.L. , c. (C. ) (pending before the Legislature as this bill) and subject to the approval of the Energy P3 Unit. A public-private partnership agreement shall permit a private entity to develop, design, build, operate, or maintain, one or more energy-related projects, and to assume financial, operational, and administrative responsibility for one or more energy-related projects, in partnership with a governmental entity. Such energy-related projects may involve the construction, reconstruction, alteration, or improvement of one or more buildings, structures, or facilities owned, or to be owned, by the governmental entity, provided that the private entity is responsible for the performance of each such energy-related project, as the case may be, and the governmental entity retains full ownership of the land upon which the energy-related project is developed. No particular method or structure of project financing shall be required of a private entity, unless such method or structure of project financing or, if applicable, provision for ownership and title transfer to the governmental entity at the end of the term of the agreement, is clearly described by the governmental entity in any formal authorized solicitation process for an energy-related project. A governmental entity may solicit a proposal for an energy-related project, or receive an unsolicited proposal for an energy-related project, only from a private entity that has been duly qualified by the Energy P3 Unit in accordance with sections 7 and 8 of P.L. , c. (C. ) (pending before the Legislature as this bill) and any other applicable law.
5. a. An energy-related project may be proposed either by a governmental entity or by a private entity. A public-private partnership agreement may provide that, as part of the agreement, an energy-related project may be proposed and selected individually or as part of the construction, reconstruction, alteration, or improvement of one or more buildings, structures, or facilities owned, or to be owned, by a governmental entity. An energy-related project shall be designed to enable a governmental entity to more reliably, efficiently, and cost-effectively generate, transmit, distribute, conserve, consume, and acquire energy; improve its energy infrastructure; reduce greenhouse gas emissions; diversify its sources of energy supply; create jobs; and foster economic development. If practicable, energy-related projects are encouraged to adhere to the provisions of the green building manual, as prepared by the Commissioner of the Department of Community Affairs pursuant to section 1 of P.L.2007, c.132 (C.52:27D-130.6).
b. If an unsolicited energy-related project is proposed by a private entity to a governmental entity, the governmental entity to which the energy-related project proposal is made shall determine whether to accept, reject, or modify the proposal. If the energy-related project proposal is accepted in its entirety, or with modifications, by the governmental entity, and the governmental entity elects to implement the energy-related project, the governmental entity shall initiate and adhere to the competitive solicitation procedure established pursuant to sections 8 and 9 of P.L. , c. (C. ) (pending before the Legislature as this bill). If the unsolicited proposal is rejected by the governmental entity, the governmental entity shall promptly return the unsolicited proposal, and all copies thereof, to the private entity and shall treat the unsolicited proposal, and all records of communications and negotiations related thereto, as confidential and exempt from public disclosure in accordance with the provisions of section 17 of P.L. , c. (C. ) (pending before the Legislature as this bill).
6. a. Notwithstanding the provisions of any law, or any rule, regulation, or order to the contrary, a governmental entity for which a private entity assumes financial, operational, or administrative responsibility for an energy-related project pursuant to P.L. , c. (C. ) (pending before the Legislature as this bill) under a public-private partnership agreement, shall not be required to advertise for public bid the energy-related project prior to the private entity assuming responsibility for that project.
b. A governmental entity shall be authorized to enter into one or more public-private partnership agreements with a private entity, its affiliates, and approved subcontractors without being subject to the requirement of advertisement for public bid otherwise applicable to the governmental entity, provided that the private entity has been selected by the governmental entity pursuant to a solicitation process conducted pursuant to section 8 of P.L. , c. (C. ) (pending before the Legislature as this bill).
c. Except as specifically set forth in P.L. , c. (C. ) (pending before the Legislature as this bill) with regard to the non-requirement of advertisement for public bid, all solicitations for proposals conducted pursuant to section 8 of P.L. , c. (C. ) (pending before the Legislature as this bill) shall be subject to the procurement laws and procedures otherwise applicable to the governmental entity.
d. For the purposes of this section, a governmental entity shall include the New Jersey Economic Development Authority, and any energy-related project undertaken pursuant to P.L. , c. (C. ) (pending before the Legislature as this bill) of which the New Jersey Economic Development Authority becomes an owner or lessee, or which is situated on land of which the New Jersey Economic Development Authority becomes the lessee, shall be deemed a project as that term is defined in section 3 of P.L.1974, c.80 (C.34:1B-3).
7. a. (1) There is hereby established in the Board of Public Utilities an Energy Public-Private Partnership Unit. The Energy P3 Unit shall be responsible for the formulation and execution of a comprehensive Statewide policy for public-private partnership agreements that facilitate the development of energy-related projects and shall be responsible for the development, promotion, coordination, oversight, and approval of public-private partnership agreements pursuant to P.L. , c. (C. ) (pending before the Legislature as this bill). In doing so, the Energy P3 Unit shall consult and coordinate with representatives of other State departments, agencies, boards, and authorities, including, but not limited to, the New Jersey Economic Development Authority, the Department of the Treasury, the Department of Environmental Protection, and the Department of Community Affairs, as shall be deemed necessary and appropriate, to accomplish the goals of P.L. , c. (C. ) (pending before the Legislature as this bill) to facilitate public-private partnership agreements.
(2) Within 180 days of the effective date of P.L. , c. (C. ) (pending before the Legislature as this bill), the Energy P3 Unit shall: (a) establish policies and procedures that encourage private entity participation and investment in governmental energy-related projects as necessary and appropriate to implement the provisions of P.L. , c. (C. ) (pending before the Legislature as this bill); (b) provide technical advice, guidance, and assistance to governmental entities to ensure the availability of the necessary expertise and capacity to develop and evaluate the merits of proposed energy-related projects; (c) review and approve proposed energy-related projects; (d) promote informed and timely decision-making with regard to the procurement of energy-related projects; (e) establish appropriate qualification criteria for private entities, including the qualification and ranking of private entities to develop particular energy-related projects; and (f) monitor and enforce the procurement policies and procedures established pursuant to P.L. , c. (C. ) (pending before the Legislature as this bill). The policies may also include provision for potential revenue sharing opportunities between a governmental entity and a private entity in certain defined or agreed circumstances, including energy-related projects that achieve profits that exceed a negotiated rate of return established for a private entity in a public-private partnership agreement.
b. The Energy P3 Unit shall identify the resources and personnel of the board and other participating agencies, departments, boards, and authorities that are deemed necessary and appropriate to staff and support the Energy P3 Unit. The Energy P3 Unit shall have the authority to retain one or more qualified private consultants with expertise to provide the technical assistance and resources deemed necessary and appropriate to assist the Energy P3 Unit.
c. Sufficient funding shall be made available to the Energy P3 Unit to enable the Energy P3 Unit to adequately and properly perform the duties and responsibilities established by P.L. , c. (C. ) (pending before the Legislature as this bill) and to compensate one or more private consultants retained to assist the Energy P3 Unit pursuant to this section. The Energy P3 Unit may charge a private entity a fee as compensation for the services rendered by the Energy P3 Unit and, if applicable, by one or more retained private consultants in connection with a completed energy-related project. The fee shall be assessed on a flat fee or percentage basis, based upon the total costs of a completed energy-related project. If a percentage fee is utilized, the percentage fee shall not exceed three percent of the total costs of a completed energy-related project.
d. The Energy P3 Unit may promulgate rules and regulations, pursuant to the "Administrative Procedure Act," P.L.1968, c.410 (C.52:14B-1 et seq.), as are necessary to implement the provisions of P.L. , c. (C. ) (pending before the Legislature as this bill).
e. The board shall, within 90 days of the effective date of P.L. , c. (C. ) (pending before the Legislature as this bill), undertake a study of the staffing and other resources deemed necessary to enable the Energy P3 Unit to perform the duties and responsibilities established for the Energy P3 Unit by P.L. , c. (C. ) (pending before the Legislature as this bill). The board shall prepare a report of its study, and shall provide a copy thereof to the Governor and, pursuant to section 2 of P.L.1991, c.164 (C.52:14-19.1), to the Legislature, recommending any further action and implementation.
8. a. The Energy P3 Unit shall require each private entity that seeks to submit a solicited or unsolicited energy-related project proposal to a governmental entity pursuant to P.L. , c. (C. ) (pending before the Legislature as this bill) to provide a notarized statement in response to a questionnaire that is standardized for like classes of energy-related projects and private entities. The questionnaire shall be designed to fully develop the prior experience and qualifications, financial strength, adequacy of equipment and plant, and organization and personnel of the private entity, and such other pertinent and material facts deemed necessary by the Energy P3 Unit, in order to enable the Energy P3 Unit to qualify a private entity for the type, cost, or other applicable metric, of an energy-related project that the private entity shall be deemed qualified to develop, design, construct, or operate. The qualification criteria established by the Energy P3 Unit shall be competitively neutral, designed to maximize participation by qualified private entities, and shall not include classifications or requirements that would create preferences or advantages of any nature to particular classes of private entities including, but not limited to, private entities that are residents of the State, equipment manufacturers, or incumbent providers of energy-related products or services, including operational and maintenance services, to governmental entities.
b. The Energy P3 Unit shall determine the qualification of each private entity that seeks to be qualified to develop an energy-related project. The private entity classifications established pursuant to this section shall be tiered to coincide with the level of experience and qualifications, financial strength, adequacy of equipment and plant of the energy-related projects or classifications that are included within each tier. A finding by the Energy P3 Unit that a private entity is qualified to develop energy-related projects included within a particular tier shall be predicated upon the demonstrated ability of a private entity to develop, design, build, finance, own, operate, or maintain energy-related projects having the same or similar experience, sophistication, complexity, and capital investment established for projects within the tier. The Energy P3 Unit shall classify each private entity within 30 business days after receipt of statements from the private entity that are deemed to be administratively complete and fully responsive to the questionnaire described in this section. Notice of the classification shall be forwarded to the private entity by registered mail within five business days after such classification is made. Each such classification shall be subject to expiration and renewal upon such terms as shall be established by the Energy P3 Unit in accordance with this section.
c. A private entity that is dissatisfied with its classification may request, in writing, a hearing before the Energy P3 Unit or its designee, and may present such evidence with respect to the financial responsibility, organization, plant and equipment, personnel or experience of the private entity as might justify a different classification. After presentation of the evidence, the Energy P3 Unit or its designee may retain or modify the classification of the private entity.
d. A current list of each qualified private entity, arranged by tier of energy-related project or projects for which the private entity has been qualified, shall be maintained by the Energy P3 Unit. The list shall be provided to each governmental entity that seeks to develop an energy-related project pursuant to P.L. , c. (C. ) (pending before the Legislature as this bill). Each such governmental entity shall be provided with a complete list of each private entity that has been qualified by the Energy P3 Unit for the type of energy-related project proposed by the governmental entity. The list shall be posted on the website maintained by the Energy P3 Unit and shall be updated monthly.
9. a. For each proposed energy-related project, a governmental entity shall solicit proposals from private entities set forth on the list of private entities, maintained by the Energy P3 Unit, as required pursuant to section 8 of P.L. , c. (C. ) (pending before the Legislature as this bill) that have been qualified for inclusion in the tier established for the energy-related project contemplated by the governmental entity. The solicitation by the governmental entity shall invite each private entity qualified within the applicable tier to submit a proposal to the governmental entity for the proposed energy-related project. The proposal shall detail how the private entity would design, develop, finance, build, operate, or maintain the energy-related project, as the case may be, and summarize the private entity's experience with comparable energy-related projects. The governmental entity or its designee shall review the proposal received from each private entity in response to the solicitation and shall select, pursuant to the criteria set forth in section 8 of P.L. , c. (C. ) (pending before the Legislature as this bill), no more than three private entities deemed to be the most qualified to develop the energy-related project. The governmental entity may select fewer than three private entities if fewer than three private entities respond to the solicitation.
b. Once the three private entities have been selected, each private entity shall be requested to make a formal proposal to the governmental entity regarding the energy-related project. The proposal shall include, but not be limited to, a preliminary project scope of work, identification of proposed equipment and measures, projected project costs and, if applicable, anticipated savings. If the governmental entity so elects, it may request supplemental information or revised proposals from the private entities and may require the private entities to make an oral presentation and to respond to questions regarding the private entities' proposals. The governmental entity shall afford each private entity a reasonable opportunity to present supplemental information with regard to the private entity's proposal and to respond to questions regarding the private entity's proposal or qualification to develop the energy-related project. Each private entity shall be afforded an opportunity to supplement its proposal to respond to any proposed changes to the scope or specifications of the energy-related project by the governmental entity after review of the private entities' written proposals.
c. The governmental entity shall award the energy-related project to the private entity whose proposal is determined to be the most advantageous to the governmental entity. The criteria upon which the determination shall be based shall include, but not be limited to: (1) the general reputation, industry experience, technical capability, and expertise of the private entity; (2) the cost of the proposed energy-related project; (3) the responsiveness, creativity, innovativeness, and comprehensiveness of the private entity's proposal; (4) if applicable, the ability of the private entity to arrange financing on terms favorable to the governmental entity; (5) the proposed allocation of risks and performance guarantees; (6) the incorporation of innovative terms and conditions that would not otherwise be available to, or would not be available upon a comparable basis to the governmental entity; (7) any cost savings, if applicable given the nature of the energy-related project; (8) the public benefits of the energy-related project, including economic development, job creation, and reduced environmental impacts; and (9) the experience and capability of the private entity in implementing comparable energy-related projects outside of the State.
d. The governmental entity shall negotiate a public-private partnership agreement for the energy-related project with the private entity selected as most qualified in accordance with the qualification criteria set forth pursuant to this section. If the governmental entity is unable to negotiate a public-private partnership agreement with the selected private entity on terms that the governmental entity determines to be fair and reasonable, negotiations with the selected private entity shall be terminated. The governmental entity shall then commence negotiations with the private entity deemed to be the second most qualified for the energy-related project in accordance with the qualification criteria established pursuant to this section. If the governmental entity is unable to negotiate a public-private partnership agreement with the second most qualified private entity, the governmental entity shall terminate such negotiations and commence negotiations with the private entity deemed to be the third most qualified. If the governmental entity is unable to negotiate a public-private partnership agreement with the third most qualified private entity, the governmental entity shall continue to negotiate with the next additional qualified private entities in the applicable tier as are necessary in order to enable the governmental entity to conclude a public-private partnership agreement with a qualified private entity. If the governmental entity fails to conclude a satisfactory public-private partnership agreement with a qualified private entity, the governmental entity may cease further negotiations and terminate the energy-related project or commence a new proposal procedure in accordance with the provisions of P.L. , c. (C. ) (pending before the Legislature as this bill).
10. Prior to, or in connection with, the negotiation and execution of a public-private partnership agreement, a governmental entity may negotiate and execute a preliminary agreement with the private entity selected for the energy-related project. The preliminary agreement may, among other things:
a. authorize the private entity to commence certain preliminary activities for which it may be compensated including, but not limited to, project planning, design and engineering, performance of initial and supplemental energy audits and environmental studies, securing project financing, and acquisition of equipment;
b. establish the terms and conditions and procedures for the negotiation of the public-private partnership agreement;
c. define the nature and extent of the expenditures that may be made pursuant to the preliminary agreement; and
d. establish other terms and conditions that the governmental entity and private entity deem necessary and appropriate to foster the development of the energy-related project.
11. a. A governmental entity and a private entity shall cooperate to leverage, to the greatest extent possible, available private sector financial resources and expertise and to enhance the ability of the energy-related project to obtain and maximize federal, State, local or other funds, grants or incentives, tax advantages, or financial and other benefits to finance, secure, guarantee, service or reduce project debt, or to minimize, repay, or accelerate the repayment of project costs, or provide other financial or other advantages.
b. In order to facilitate the financing, development, and delivery of, or to minimize the costs associated with, an energy-related project, a governmental entity may: (1) become the owner or lessee of the energy-related project, or lessee of the land, or both; (2) issue indebtedness in accordance with the governmental entity's enabling legislation provided that, at a minimum, the private entity guarantees the performance of the energy-related project to the governmental entity; (3) dedicate any property interest, including land, improvements, fixtures, and tangible personal property that the governmental entity has for public use; and (4) exercise all powers conferred on the governmental entity by law including, but not limited to, lease or grant rights of way, easements, and access, exercise the power of eminent domain, grant development rights, issue and accelerate permits and other authorizations, and grant licenses, franchises, contractual, and real property rights. A public-private partnership agreement may also provide for the sale, long-term lease, or lease-purchase of, or grant of concessions for, the existing and new assets and facilities of a governmental entity to a private entity, and revenue sharing opportunities between the governmental entity and private entity in agreed circumstances. If the public-private partnership agreement provides for ownership of the energy-related project, or a portion thereof, by the private entity during the term of the agreement, the agreement may provide for the transfer of the project by the private entity to the governmental entity at no charge upon the expiration of the term of the agreement or any extension thereof.
12. The development of an energy-related project pursuant to P.L. , c. (C. ) (pending before the Legislature as this bill) shall be deemed to constitute the performance of an essential public function. All energy-related projects predominantly used by, or developed in furtherance of the purposes of a governmental entity pursuant to P.L. , c. (C. ) (pending before the Legislature as this bill) that are owned by or leased to a governmental entity, non-profit business entity, foreign or domestic, or business entity wholly owned by such non-profit business entity, shall be exempt from property taxation and special assessments of the State, or any municipality, or other political subdivision of the State and, notwithstanding the provisions of section 15 of P.L.1974, c.80 (C.34:1B-15) or section 2 of P.L.1977, c.272 (C.54:4-2.2b) or any other law to the contrary, shall not be required to make payments in lieu of taxes. The land upon which the energy-related project is located shall be exempt from property taxation. The energy-related project and the land upon which the energy-related project is located shall not be subject to the provisions of section 1 of P.L.1984, c.176 (C.54:4-1.10) regarding the tax liability of private parties conducting for-profit activities on tax exempt land, or section 1 of P.L.1949, c.177 (C.54:4-2.3) regarding the taxation of leasehold interests in exempt property that are held by nonexempt parties. This section shall apply only when the energy-related project is owned by or leased to the governmental entity, a non-profit business entity, foreign or domestic, or a business entity wholly owned by such non-profit business entity, and the energy-related project furthers the purposes of the governmental entity.
13. If no public fund has been established for the financing of an energy-related project developed pursuant to P.L. , c. (C. ) (pending before the Legislature as this bill), the chief financial officer of the governmental entity may require the private entity responsible for the development of the energy-related project to post, or to cause to be posted, a bond guaranteeing prompt payment of funds due to the contractor, its subcontractors, and to all persons furnishing labor or materials to the contractor or its subcontractors in the conduct of the work on the energy-related project.
14. a. All workers employed in the performance of any construction undertaken in connection with an energy-related project for which a public-private partnership agreement has been negotiated pursuant to P.L. , c. (C. ) (pending before the Legislature as this bill), including all workers for subcontractors employed in the performance of any construction undertaken in connection with such an energy-related project, shall be paid not less than the prevailing wage rate for the worker's craft or trade as determined by the Commissioner of Labor and Workforce Development pursuant to P.L.1963, c.150 (C.34:11-56.25 et seq.) and P.L.2005, c.379 (C.34:11-56.58 et seq.).
b. All energy-related projects developed pursuant to a public-private partnership agreement negotiated pursuant to P.L. , c. (C. ) (pending before the Legislature as this bill) may contain a project labor agreement. The project labor agreement shall be subject to the provisions of P.L.2002, c.44 (C.52:38-1 et seq.) and shall be structured in a manner that to the greatest extent possible enhances employment opportunities for individuals residing in the county in which the energy-related project will be located. The general contractor, construction manager, design-build team, and subcontractor for an energy-related project developed pursuant to P.L. , c. (C. ) (pending before the Legislature as this bill) shall be classified by the Energy P3 Unit to perform work on an energy-related project.
15. Each general contractor, construction manager, design-build team, and subcontractor that performs work in connection with an energy-related project pursuant to P.L. , c. (C. ) (pending before the Legislature as this bill) shall be classified by the Energy P3 Unit in accordance with the provisions of P.L. , c. (C. ) (pending before the Legislature as this bill), in consultation with the Division of Property Management and Construction in the Department of the Treasury.
16. a. All energy-related projects proposed by a governmental entity, upon receiving a solicited or unsolicited energy-related project proposal pursuant to section 8 of P.L. , c. (C. ) (pending before the Legislature as this bill), shall be submitted to the Energy P3 Unit for project review and approval. Only an application deemed to be complete by the Energy P3 Unit shall be considered. In order for an application to be deemed complete, the application shall include, at a minimum: (1) a public-private partnership agreement between a governmental entity and a private entity and, if applicable, a preliminary agreement; (2) a copy of any land lease or land agreement between the governmental entity and the private entity; (3) a project narrative that includes a full description of the background and experience of the private entity, and the nature and scope of the energy-related project and its anticipated benefits; (4) financial information, including the estimated cost of the energy-related project, a sources and uses statement, an operating pro forma, evidence of legally binding financial commitments, evidence of the private entity's bonding capacity for the development and operation of the energy-related project and, if applicable, a long term maintenance plan; (5) a detailed project schedule, including a timetable for completion of all predevelopment, development, and placed-in-service tasks and milestones, which must demonstrate that the energy-related project will be constructed within five years of the date of approval by the Energy P3 Unit; (6) proof of receipt or anticipated date of receipt of required approvals; (7) proof that the private entity will obtain a project labor agreement, if any, and pay the applicable prevailing wage to all workers employed in the performance of any construction undertaken in connection with the energy-related project; (8) if appropriate, a narrative that addresses how the energy-related project will attempt to incorporate the applicable provisions of the green building manual prepared by the Commissioner of Community Affairs pursuant to section 1 of P.L.2007, c.132 (C.52:27D-130.6) and standards of the Leadership in Energy and Environmental Design Green Building Rating System as adopted by the United States Green Building Council; (9) if appropriate, a demonstration of projected energy cost savings; and (10) any other requirements that the Energy P3 Unit may reasonably deem necessary or appropriate for the energy-related project.
b. As part of the estimated costs and financial documentation for an energy-related project, the application of the private entity shall contain a long-range operation and maintenance plan and shall separately state and clearly set forth the expenditures associated with such plan. The long-range operation and maintenance plan shall be approved by the Energy P3 Unit pursuant to regulations promulgated by the Energy P3 Unit that reflect national building maintenance standards and other appropriate building maintenance benchmarks. Contracts to implement a long-range operation and maintenance plan pursuant to this subsection may contain a project labor agreement. Any such project labor agreement shall be subject to the provisions of P.L.2002, c.44 (C.52:38-1 et seq.), and shall be established in a manner that enhances, to the greatest extent possible, employment opportunities for individuals residing in the county in which the energy-related project is located.
c. The Energy P3 Unit shall review all applications for completeness in accordance with this section, and may request additional information as may be required to make a complete assessment of the energy-related project. The Energy P3 Unit shall perform a substantive review of the application, which shall include an assessment of the feasibility and design of the project, the experience and qualification of the private entity, the soundness of the financial plan, the adequacy of the public-private partnership agreement, preliminary agreement, land lease, and other agreements, and the adequacy of the long range operation and maintenance plan. The Energy P3 Unit shall have the right to obtain additional information from a private entity if required to complete the review, including the right to issue notices of deficiency to the private entity and require that the record be supplemented until it is deemed complete.
d. An energy-related project shall not proceed until the application has met the conditions established pursuant to the provisions of this section and has received the approval by the Energy P3 Unit. The Energy P3 Unit shall be permitted to revoke an approval if it determines that an energy-related project materially deviates from the application submitted pursuant to this section or has not received all required approvals, including a certificate of occupancy. An energy-related project that has been approved by the Energy P3 Unit shall be completed within five years after the date of approval by the Energy P3 Unit. The decision of the Energy P3 Unit regarding an energy-related project shall be appealable to the Appellate Division of the Superior Court.
17. a. Notwithstanding the provisions of any law, or any rule, regulation, or order to the contrary, a private entity that submits a proposal in response to a solicitation for an energy-related project may identify those portions of the proposal that the private entity deems to be confidential, competitively sensitive bid-related information, including, but not limited to, pricing and financing terms, and proprietary or trade secret information. The private entity shall provide justification as to why the materials identified as confidential should not, upon request, be produced to others by the governmental entity. Information determined by the governmental entity to be confidential, competitively sensitive bid-related information shall not be subject to disclosure or considered a public or government record under P.L.1963, c.73 (C.47:1A-1 et seq.) or P.L.2001, c.404 (C.47:1A-5 et al.), or otherwise, prior to the selection of the winning proposal. Disclosure of confidential, competitively sensitive bid-related information shall occur, upon request, after the selection of the winning proposal, but prior to the execution of the final public-private partnership agreement by the governmental entity and the private entity. Information determined to be proprietary or trade secret information shall not be subject to production at any time by the governmental entity pursuant to P.L.1963, c.73 (C.47:1A-1 et seq.) or P.L.2001, c.404 (C.47:1A-5 et al.), or otherwise.
b. Notwithstanding the provisions of any law, or any rule, regulation, or order to the contrary, a private entity that submits an unsolicited proposal for an energy-related project that is accepted by a governmental entity and made the basis for a solicitation for an energy-related project pursuant to P.L. , c. (C. ) (pending before the Legislature as this bill), may identify those portions of the unsolicited proposal that the private entity deems to be confidential, competitively sensitive bid-related information, including, but not limited to, pricing, financing terms, and proprietary or trade secret information. The private entity shall provide justification as to why the materials identified as confidential should not, upon request, be produced to others by the governmental entity. Information determined by the governmental entity to be confidential, competitively sensitive bid-related information shall not be subject to disclosure or considered a public or government record under P.L.1963, c.73 (C.47:1A-1 et seq.) or P.L.2001, c.404 (C.47:1A-5 et al.) or otherwise, prior to the selection of the winning proposal. Disclosure of confidential, competitively sensitive bid-related information shall occur, upon request, after the selection of the winning proposal, but prior to the execution of the final public-private partnership agreement by the governmental entity and the private entity. Information determined to be proprietary or trade secret information shall not be subject to production at any time by the governmental entity pursuant to P.L.1963, c.73 (C.47:1A-1 et seq.) or P.L.2001, c.404 (C.47:1A-5 et al.), or otherwise.
c. Notwithstanding the provisions of any law, or any rule, regulation, or order to the contrary, a private entity that submits an unsolicited proposal for an energy-related project that is rejected by a governmental entity and not made the basis of a solicitation for an energy-related project pursuant to P.L. , c. (C. ) (pending before the Legislature as this bill), may request the governmental entity to return the entire unsolicited proposal to the private entity, and the governmental entity shall promptly comply with any such request. An unsolicited proposal for a governmental entity energy-related project that is rejected by a governmental entity and not made the basis of a solicitation for an energy-related project shall not be subject to disclosure or considered a public or government record under P.L.1963, c.73 (C.47:1A-1 et seq.) or P.L.2001, c.404 (C.47:1A-5 et al.), or otherwise, and no disclosure of the unsolicited proposal, any portion thereof, or records of any communications relating thereto, shall be made to the public pursuant to P.L.1963, c.73 (C.47:1A-1 et seq.) or P.L.2001, c.404 (C.47:1A-5 et al.), or otherwise.
18. The provisions of P.L.2009, c.136 (C.52:18-42 et seq.) shall not apply to any energy-related project carried out pursuant to P.L. , c. (C. ) (pending before the Legislature as this bill).
19. Nothing in P.L. c. (C. ) (pending before the Legislature as this bill) shall limit the powers of the Office of the State Comptroller pursuant to P.L.2007, c.52 (C.52:15C-1 et seq.).
20. This act shall take effect immediately.
STATEMENT
This bill, entitled the "Governmental Energy Reliability and Savings Public-Private Partnership Act," permits private entities to propose to governmental entities a broad spectrum of energy-related projects at governmental facilities through a public-private partnership (P3) agreement. Current law does not authorize these types of P3 agreements.
Under the bill, private entities would be responsible for designing, building, financing, operating, or maintaining energy-related projects for governmental entity facilities in a manner similar to the approach authorized by the "Economic Stimulus Act of 2009," which, in part, authorized State colleges and universities to offer certain financial and other incentives to prospective private sector developers.
The bill creates an "Energy P3 Unit" situated within the Board of Public Utilities (BPU) that is responsible for the formulation and execution of a comprehensive Statewide policy for P3 agreements that will facilitate the development of energy-related projects and for the development, promotion, coordination, oversight, and approval of P3 agreements. In doing so, the Energy P3 Unit is to consult and coordinate with representatives of other State departments, agencies, boards, and authorities, including, but not limited to, the New Jersey Economic Development Authority, the Department of the Treasury, the Department of Environmental Protection, and the Department of Community Affairs, to accomplish the goals of the bill and facilitate P3 agreements. The bill authorizes the Energy P3 Unit to retain professional advisers as needed and to charge certain fees to fund positions in the Energy P3 unit and its retained professional advisers.
The bill provides criteria by which a governmental entity is to award an energy-related project P3 agreement to a private entity whose proposal is determined to be the most advantageous to the governmental entity. This determination includes, but is not limited to: 1) the general reputation, industry experience, technical capability, and expertise of the private entity; 2) the cost of the proposed energy-related project; 3) the responsiveness, creativity, innovativeness, and comprehensiveness of the private entity's proposal; 4) if applicable, the ability of the private entity to arrange financing on terms favorable to the governmental entity; 5) the proposed allocation of risks and performance guarantees; 6) the incorporation of innovative terms and conditions that would not otherwise be available to, or would not be available upon a comparable basis to the governmental entity; 7) any cost savings, if applicable given the nature of the energy-related project; 8) the public benefits of the energy-related project, including economic development, job creation, and reduced environmental impacts; and 9) the experience and capability of the private entity in implementing comparable energy-related projects outside of the State.
The bill prescribes competitive contracting procedures to govern energy-related project P3 agreements, including procurements and prevailing wage requirements for workers engaged in construction activities and other worker protections, and provides necessary oversight authority to the Energy P3 Unit to protect the interests of participating governmental entities.
