REQUEST FOR PROPOSALS

Transcription

1 REQUEST FOR PROPOSALS FOR ENERGY SAVINGS PLAN DEVELOPMENT AND IMPLEMENTATION FOR THE <Owner Name> Attention: <Contact Name> Proposals Due: <month, day, year>

2 Request for Proposals for Development and Implementation of an Energy Savings Plan Introduction Letter [Use Official Letterhead] <Name of Owner s Representative> Phone: <Number> <Title> Fax: <Number> <Date> To: Interested Energy Services Companies: <Address> The <Owner> is requesting proposals from prequalified Energy Services Companies ( ESCOs ) to develop and potentially implement a comprehensive Energy Savings Plan ( ESP ) as part of undertaking an Energy Savings Implementation Program ( ESIP ) for our facilities. As the first step of our Energy Savings Improvement Program, we have <participated in the New Jersey Board of Public Utilities' Local Government Energy Audit Program><completed an energy audit>. The completed audit is available online at <web link or other direction> <or attached to this document>. The <Owner> will select an Energy Services Company through the competitive contracting process to develop an Energy Savings Plan and implementation of same. In order to be considered the ESCO must be prequalified by the Department of Treasury, Division of Property Management and Construction as an Energy Services Company Class C036. Your proposal for an Energy Savings Plan and implementation shall be in accordance with the attached Request for Proposals and fully comply with: <Public School Contracts Law N.J.S.A. 18A:18A-1 et seq< <Local Public Contracts Law, N.J.S.A. 40A:11-1 et seq.> Energy Savings Improvement Program Legislation, N.J.S.A. 40A: or 18A:18A:4.6) Local Finance Notice , Implementing an Energy Savings Improvement Plan Board of Public Utilities Directives and Regulations An optional pre-proposal conference will be held on <date> at <location>. Attendance at the preproposal conference is strongly encouraged, but is not mandatory. Attention is called to Section 4 of the RFP governing Requests for Information, Clarifications and Submission of Sample agreements for consideration. The deadline for proposals is <time> on <day and date>. Thank you for your interest. Sincerely, <Name of official> <Title>

3 TABLE OF CONTENTS Part A. INSTRUCTIONS TO PROPOSERS...1 Part B. TERMS AND CONDITIONS...7 Part C. SCOPE OF WORK...17 Part D. PROPOSAL EVALUATION 21 Part E. FORM OF PROPOSAL AND CONTENT...24 Part F. APPENDIX A. Covered Facilities Report 26 B. Questions or Requests for Clarification Form 27 C. Project Case Study Form 28 D. Americans with Disabilities Act of E. Equal Employment Opportunity Act 30 F. (If Necessary) List of Agencies with Elected Officials Required for Political Contribution Disclosure 32 Part G. PROPOSAL FORMS Proposal Cover Form 33 Proposal Form 1: Proposer Information, Certification and Representations 34 Proposal Form 2: Energy Services Company Fee Proposal 36 Proposal Form 3: Sample Project Development Agreement 38 Proposal Form 4: Energy Savings Projection 39 Proposal Form 5: Proposer s Checklist 40 Proposal Requirement #1: Consent of Surety 41 Proposal Requirement #2: Ownership Disclosure Statement 42 Proposal Requirement #3: Affidavit of Debarred, Suspended or Disqualified 43 Contractors Proposal Requirement #4: Non-Collusion Affidavit 44 Proposal Requirement #5: Required Submission Of State Forms 45 Proposal Requirement #6: Required Proposer s Certifications 46 Proposal Requirement #7: Certification of Absence of Conflict of Direct or 47 Indirect Interests (Board of Education Only) Proposal Requirement #8: C.271 Political 48 Contribution Disclosure Form

4 PART A. INSTRUCTIONS TO PROPOSERS A-1. INTENT The intent of this Request for Proposals (RFP) is to solicit proposals to obtain the comprehensive services of an Energy Savings Company (ESCO) to assist the <Owner> (Owner) to develop an Energy Savings Plan (ESP) designed to improve energy efficiency within the Owner s facilities, and the financing thereof, through implementation and installation of energy conservation, capital improvements and other measures which will be paid for with the verified savings from reduced energy costs. It is also the intent, upon independent third party verification of the ESP, and upon Owner review and approval thereof, to have the ESCO implement the Energy Savings Improvement Program (ESIP), by taking actions including, but not limited to, designing the improvements, preparing the bid documents, arranging for financing, managing the construction, overseeing commissioning, <providing an energy savings performance guarantee>, preparing and providing a maintenance schedule for the improvements, and providing training for Owner s staff. The Owner reserves the right to accept or reject any proposed energy savings guarantee. <The Owner has participated in the Local Government Energy Audit Program through the Board of Public Utilities ( BPU ) or <has conducted an audit using a DPMC classified auditing firm> and has received a completed Energy Audit>. The completed audit is available online at <web link or other direction> <or attached to this document>. In preparing the ESP the ESCO will be expected to analyze the audit and assess current energy usage and costs, and to identify, analyze, and recommend Energy Conservation Measures (ECM), renewable energy systems including, but not limited to solar and geothermal energy, develop specifications for capital improvements and propose financing alternatives thereof with the ultimate goals of reducing the energy costs to improve energy efficiency. The Owner has identified the specific facilities to be covered under this RFP and included any additional guidance to proposers in Appendix A. The services shall be performed in two parts in accordance with the Energy Savings Improvement Program Act: Phase I: The Proposer shall develop an Energy Savings Plan (ESP) to be reviewed and approved by the Owner. Subsequent to the approval of the ESP, the Owner, in its sole discretion, may authorize the ESCO to proceed to the next phase. Phase II: The Energy Savings Implementation Program (ESIP). The Owner is under no obligation to proceed past the receipt and review of the ESP. All proposers must be prequalified by the New Jersey Department of Treasury, Division of Property Management and Construction, pursuant to N.J.S.A. 52:35-1 e seq. and N.J.A.C. 17: as Construction Class Code C036 to be eligible to participate in the RFP process. This RFP is being issued as a Competitive Contract pursuant to <N.J.S.A. 40A:11-4.6(b)(1)/N.J.S.A. 18A:18A-4.6(b)(1)>, and is conducted pursuant to <N.J.S.A. 40A: et seq/n.j.s.a. 18A:18A-4.1 et seq.> and N.J.A.C. 5:34-4. In this context the terms RFP or bid are used interchangeably with reference to submissions and documentation. Ver /8/2011 Page 1

5 The Proposal for an ESP and its implementation must be in compliance with the terms and conditions of this RFP and specifically comply with: <The Public School Contracts Law, N.J.S.A. 18A:18A-1 et seq.> <Local Public Contracts Law, N.J.S.A. 40A:11-1 et seq.> The Energy Savings Improvement Program Act, <N.J.S.A. 18A:18A-4.6 and 18A:18A-42> <N.J.S.A. 40A: and 40A:11-15> Local Finance Notices Implementing an Energy Savings Improvement Plan, and , Update on Implementing Energy Savings Improvement Programs issued by the Division of Local Government Services in the New Jersey Department of Community Affairs ( and ( N.J. Board of Public Utilities, Office of Clean Energy Requirements, Guidelines, Orders and Protocols ( A-2. RESPONSE TO REQUEST FOR PROPOSALS (RFP) ESCOs must meet or exceed the professional, administrative and financial qualifications and requirements set forth in the RFP and shall provide all of the information requested herein. Proposers may submit supplemental information that it deems would be useful for the Owner in evaluating its proposal and may provide alternate solutions as may be consistent with the Energy Savings Improvement Program Act. Proposers are encouraged to be clear, factual, and concise in presentation of information. Proposers are cautioned, however, that the response must meet the minimum RFP requirements. Failure to comply with the requirements of this RFP may disqualify the Proposer s response from consideration. A-3. DEADLINE FOR RESPONSES/OWNER S REPRESENTATIVE Responses to the RFP must be submitted to the Owner s Representative no later than XXX p.m. on <date, xx, 20XX.> Proposals must be in a sealed opaque envelope and clearly marked Energy Savings Plan Development and Implementation for <Owner Name>. Proposals should identify a contact person, and the name and office of the person who prepared the proposal and must be signed by a person authorized to bind the entity submitting the proposal. Submit <#> original and <x> copy(ies) and <#> electronic copy of the proposal on a compact disc (CD). Responses may be mailed, hand-delivered or sent via courier to the Owner s Representative. Owner s Representative: The Owner s Representative is <insert name of individual/title as required>. Submit information for the Owner s Representative to: <Name of Owner s Representative> <Owner Name> <Address> <Owner s Representative telephone number> <Owner s Representative fax phone number> <Owner s Representative > Ver /8/2011 Page 2

6 The Owner shall not be responsible for submissions mis-mailed or misdirected. Responses received by the Owner after the date and time specified above will not be considered and rejected upon receipt. A-4. QUESTIONS OR REQUESTS FOR CLARIFICATION (See Appendix B) Proposers shall direct all questions or requests for information in writing using the form included as Appendix B, by certified mail, facsimile, or to the Owner s Representative. All questions and/or requests for information must contain an address where responses can be directed. <The Owner may also want to create a website where all proposers can post questions and all can see answers. Information on that should be included here.> All proposers should note that under the Competitive Contracting provisions of the <Local Public> <Public School> Contracts Law, the Owner may not negotiate the terms of a proposal. See N.J.S.A. <18A:18A-4.5(b)> <40A:11-4.5(b)>. Accordingly, any issues that a proposer may have with regard to the legal or technical terms of the request for proposals or any anticipated exceptions, including any indemnification or other terms of contract thereto must be raised in the question period and resolved before the submission of a proposal. Accepted proposals will be subject to the terms contained herein. All questions and/or requests for information should reference the section or addendum of the RFP and page number to which they pertain and should be asked in consecutive order, from beginning to end, following the organization of the RFP. Except for brief procedural matters, there will be no response to oral inquiries. Questions must be submitted no later than <insert date>. Potential proposers are urged to submit questions pertaining to core Terms of Agreement as soon as possible, but no later that the date provided, above, so available time is maximized to resolve those questions before the proposal is due. All questions must be submitted on Appendix B. The final form of the Agreement will be subject to all public contracting statutes, rules and regulations applicable to the Owner. Any provision of any submitted Project Development Agreement or of the Proposal that is in conflict with the foregoing shall be null and void, ab initio unless otherwise approved pursuant to the requirements for exceptions, below. A-5. PRE-PROPOSAL CONFERENCE There will be an optional pre-proposal conference held in the <insert location> as provided, above, on <insert date>. Following the conference, there will be a facilities walk-through for interested ESCOs. Attendance is strongly recommended. Attendees will receive proposal evaluation credit for attending. A-6. ANTICIPATED SCHEDULE OF EVENTS Step # Item Date 1. Request for Proposal Published 2. Pre-Proposal Conference 3. Facilities Walk-through By appointment 4. Cut off for Questions and Clarifications Energy Services Companies submit Energy Savings Plan Development and Implementation Proposal Interview finalists As Needed/TBD 7. Board Vote to Award Project Development Agreement Ver /8/2011 Page 3

7 A-7. AMBIGUITY, CONFLICT OR ERRORS IN THE RFP If a Proposer discovers any ambiguity, conflict, discrepancy, omission or error in the RFP, the Proposer shall immediately notify the Owner s Representative of such error in writing which can be delivered by hand, mail, overnight carrier, or addressed as described in Section 3 of this Part. A-8. REVISIONS TO THIS RFP In the event it becomes necessary to clarify or revise this RFP, such clarification or addendum shall be issued by the Owner by written addendum to the RFP. Any RFP addendum shall be delivered by hand, certified mail, facsimile, or delivery by courier service that certifies delivery. Only those proposers who have already received the proposal documentation directly from the Owner will be provided the addendum unless the person notifies the Owner s Representative that it seeks to be included on the distribution list for any addenda. Any addendum, clarification and/or revision to this RFP shall become part of this RFP and part of the contract arising from the RFP. Proposers shall include a listing of received RFP Addendums as part of the Proposal on Proposal Form #1. A-9. PROPOSAL FORM Each proposer must submit an original proposal and (#) additional copies. Proposers must also submit <x> copy of the proposal on compact disc (CD) as provided in paragraph 3, above. Each proposal shall be duly executed. All corrections, white-outs, erasures or other forms of alteration to prices must be initialed in ink and dated by the proposer. A-10. PROPOSER REPRESENTATION Proposal must be signed by a duly authorized signatory and shall provide the full business address on the signature form provided in this proposal. Proposals by partnerships shall be signed with the partnership name by one of the members or by an authorized representative. Proposals by corporations or other business entities shall be signed with the name of the corporation or other business entity followed by the signature and title designation of an individual authorized to bind the corporation or business entity in the matter. A-11. SPECIFICATION CHANGES, ADDITIONS AND DELETIONS All changes to proposal documents shall be through written addendum, clearly marked and furnished to the Owner at the aforementioned address only prior to the opening date of the proposals. Verbal information obtained otherwise will not be considered in awarding of proposals. Proposers shall not be permitted to alter the terms of their proposal after the time and date of the submission thereof, however, the Proposer may request that the proposal be returned prior to the closing date of the RFP, in which case the Proposer may submit a new RFP prior to the closing date. A-12. ELECTRONIC PROPOSAL SUBMITTAL PROHIBITED Proposals sent by electronic, telephonic or facsimile devices (including ) are NOT acceptable and will be rejected upon receipt. Proposing firms will be expected to allow adequate time for delivery of their Proposal either by express courier, postal service or other means. The Owner shall not be responsible for premature opening or late delivery of Proposals not properly marked or addressed, or for late delivery by mail or delivery service. Ver /8/2011 Page 4

8 A-13. CONDITIONAL PROPOSALS Conditional proposals will not be accepted. Proposals may be withdrawn prior to the advertised time for receipt of proposals or authorized postponement prior thereof. Proposals received after the advertised time will not be considered and will be rejected upon receipt. A-14. COSTS The Owner assumes no responsibility and bears no liability for costs incurred by proposers in the preparation and submittal of responses to this RFP. A-15. PROPOSAL OPENING Examination of the proposals will commence after opening at <time and date> and an evaluation process will be initiated. At the opening of the proposals, the name of the vendor and price of the proposal will be announced. No proposal information or results will be given over the telephone. No proposal may be withdrawn for a period of 60 calendar days of the proposal opening date. Proposals, amendments thereto or withdrawal requests received after the time advertised for proposal opening will be rejected regardless of when they were mailed. A-16. REJECTION OF RESPONSES The Owner reserves the right to accept or reject in part or in whole any or all responses to this RFP submitted. The Owner shall reject the response of any proposer who is determined not to be responsible or whose response is deemed to be non-responsive. The Owner reserves the right to waive minor variances in responses to this RFP. Any such waiver shall not modify any remaining RFP requirements nor excuse any proposer from full compliance with the RFP specifications and other contract requirements if the proposer is awarded the contract. The failure of a proposer to supply information concerning its responsibility may be grounds for a determination of non-responsibility. A-17. BASIS OF PROPOSAL AWARD Award of proposal shall be made to the proposer determined to be the most responsible, price and other factors considered, as determined by the Owner, in its sole discretion. Proposal evaluation criteria are stated in Section D of this RFP. A-18. DISCLAIMERS The Owner reserves the right to withdraw this RFP at any time and for any reason and to issue such clarifications, modifications, and/or amendments as it may deem appropriate. Receipt by the Owner of a response to this RFP confers no rights upon the proposer, nor obligations upon the Owner in any manner. A-19. GENERAL INSTRUCTIONS It is intended that this RFP describe the requirements and response format in sufficient detail to secure comparable proposals. Proposers shall submit responses that are complete, thorough and accurate. Sales brochures and other similar material should not be included in a proposer s response. The response shall be descriptive and contain sections in the same order as provided in the section entitled Proposal Content. Proposers are instructed to clearly identify any requirement of this RFP that the proposer Ver /8/2011 Page 5

9 cannot satisfy. A proposer s failure to comply with all provisions of this RFP may disqualify the proposer s response. A-20. COMPETITIVENESS AND INTEGRITY The proposal process is designed to prevent biased evaluations and to preserve the competitiveness and integrity of contract awards. Proposers are to direct all communications regarding this proposal to the Owner s Representative and are not to contact other Owner officials or employees directly unless specifically directed by the Owner s Representative. Attempts to circumvent this requirement will be viewed negatively and may result in rejection of the offer of the firm found to be in noncompliance. Ver /8/2011 Page 6

10 PART B. TERMS AND CONDITIONS B-1. LAWS AND REGULATIONS All applicable federal, state, and local laws and regulations, as well as policies of the Owner shall apply to the proposal process and any resulting contract, and are incorporated here by reference. B-2. SUBCONTRACTING/ASSIGNMENT No portion of this proposal may be subcontracted or assigned without the prior written approval by the Owner, except to the extent required or permitted pursuant to <N.J.S.A. 18A:18A-4.6> <N.J.S.A. 40A:11-4.6> or other law. To the extent subcontracting is required pursuant to statute the subcontractors must be obtained through the public bidding process, must comply with the public bidding laws and requirements, and must be classified by the N.J. Department of Treasury, Division of Property Management and Construction, as applicable. B-3. MODIFICATIONS OF AGREEMENT No modification of the scope of the award or the resulting contract shall be binding upon the Owner unless duly approved and made in writing and signed by the Owner s Representative. B-4. QUALIFICATIONS OF PROPOSERS (Proposal Requirement #5) All proposers must be prequalified by the New Jersey Department of Treasury, Division of Property Management and Construction (DPMC), pursuant to N.J.S.A. 52:35-1 e seq. and N.J.A.C. 17: as Construction Class Code C036 to be eligible to participate in the RFP process. All subcontractors working on the preparation of the ESP must be similarly prequalified or classified as appropriate to the work by DPMC. The Owner may make such investigation as it deems necessary to determine the ability of the Proposer to perform the work. The Proposer shall furnish any information and data for this purpose as the Owner may request. All proposers are required to submit a sworn statement (Proposal Requirement #3) indicating whether the Proposer is, at the time of the proposal opening, included on the New Jersey State Treasurer s list of debarred, suspended or disqualified contractors as a result of action taken by any State or Federal Owner; B-5. OWNERSHIP DISCLOSURE REQUIRED (Proposal Requirement #2) N.J.S.A. 52: provides that no corporation or partnership shall be awarded any contract for the performance of any work or the furnishing of any goods and services, unless, prior to the receipt of the bid or accompanying the bid of said corporation or partnership, bidders shall submit a statement setting forth the names and addresses of all stockholders in the corporation or partnership who own ten percent or more of its stock of any class, or of all individual partners in the partnership who own a ten percent or greater interest therein. The included Statement of Ownership shall be completed and attached to the bid proposal. This requirement applies to all forms of corporations and partnerships, including, but not limited to, sole proprietorships, limited partnerships, limited liability corporations, limited liability partnerships, joint ventures and Subchapter S corporations. Failure to submit the Ownership Disclosure document shall result in rejection of the bid. The reference herein to bid or bidders applies to this RFP as the RFP and proposers. Ver /8/2011 Page 7

11 B-6. NON-COLLUSION AFFIDAVIT (Proposal Requirement #4) The Proposer shall submit with its bid, a statement of non-collusion as per the attached affidavit. B-7. FORM OF CONTRACT The resulting Contract ( Contract or Agreement ) shall meet the minimum requirements established in this RFP and shall include the requirements thereof unless specifically stated to the contrary in the RFP. The Contract will be subject to all statutes, rules and regulations applicable to public contracts under the laws of New Jersey as well as the requirements applicable to the design, implementation, financing, commissioning, maintenance and training for energy savings programs by public agencies. Proposers are strongly encouraged to submit proposed form of agreement (project development agreement) meeting the minimum requirements of this RFP as provided herein. B-8. NEW JERSEY BUSINESS REGISTRATION REQUIREMENTS (Certificate and Sales and Use Tax Requirements, N.J.S.A. 52:32-44 et seq.) The contractor shall provide to the contracting agency its proof of business registration with a public bid or request for proposals or no later than award of the contract, purchase order or other contracting document that evidences the agreement. The contractor shall also maintain and submit to the contracting agency a list of subcontractors that knowingly provide goods or services to the <name of Owner> or the contractor in fulfillment of the contract with the <name of Owner>, and their addresses that may be updated form time to time during the course of the contract performance. A complete and accurate list shall be submitted before final payment and the contractor shall attest to same before final payment is made. At the sole option of the Owner, the requirement that a contractor provide proof of business registration may be fulfilled by the contractor providing the contracting agency sufficient information for the contracting agency to verify proof of registration of the contractor through a computerized system maintained by the State. No contract with a subcontractor that knowingly provide goods or services to the <name of Owner> or the contractor in fulfillment of the contract with the <name of Owner>, shall be entered into by any contractor under any contract with a contracting agency unless the subcontractor first provides the contractor with proof of a valid business registration. For the term of the contract and thereafter, the contractor and each of its affiliates and a subcontractor and each of its affiliates (N.J.S.A. 52:32-44(g)(3)) shall collect and remit to the Director, New Jersey Division of Taxation, the use tax due pursuant to the Sales and Use Tax Act on all sales of tangible personal property delivered into this State, regardless of whether the tangible personal property is intended for a contract with a contracting agency. A business organization that fails to provide a copy of a business registration as required pursuant to N.J.S.A. 52:32-44 et al. or subsection e. or f. N.J.S.A. 5:12-92, or that provides false business registration information under the requirements of either of those sections, shall be liable for a penalty of $25 for each day of violation, not to exceed $50,000 for each business registration copy not properly provided under a contract with a contracting agency. Ver /8/2011 Page 8

12 B-9. AMERICANS WITH DISABILITIES ACT It shall be a condition that any company, firm or corporation supplying goods or services must be in compliance with the appropriate areas of the Americans with Disabilities Act of 1990 as enacted, and from time to time amended, and any other applicable Federal regulation. The compliance requirement is included as Appendix D. B-10. STATEMENT OF POLITICAL CONTRIBUTIONS N.J.S.A. 19:44A requires that contractors receiving contracts which, in the aggregate, exceed $50, from public entities within a calendar year, file an annual disclosure statement of political contributions with the New Jersey Election Law Enforcement Commission. The successful proposer must determine if filing is necessary. B-11. POLITICAL CONTRIBUTION DISCLOSURE <For entities under the Local Public Contracts Law This proposal is being solicited through a Fair and Open Process in accordance to the N.J.S.A. 19:44A et seq. for the basis of awarding a contract for the desired goods and services under the law. No specific documentation filing is required under this procedure.> <For entities under the Public School Contracts Law Pursuant to N.J.A.C. 6A:23A-6.3 this proposal is subject to the following provisions: a) N.J.A.C. 6A:23A-6.3(a)(1) provides that No board of education will vote upon or award any contract in the amount of $17,500 or greater to any business entity which has made a contribution reportable by the recipient under P.L.1973, c. 83 (codified at N.J.S.A. 19:44A-1 et seq.) to a member of the board of education during the preceding one year period. b) N.J.A.C. 6A:23A-6.3(a)(2 and 3) provides that Contributions reportable by the recipient under P.L. 1973, c. 83 (N.J.S.A. 19:44A-1 et seq.) to any member of the school board from any business entity doing business with the school district are prohibited during the term of the contract. c) N.J.A.C. 6A:23A-6.3(a)(4) requires all bidders to comply with requirement to submit an executed Chapter 271 Political Contribution Disclosure Form pursuant to N.J.S.A. 19:44A no later than 10 days prior to award of contract. To facilitate compliance with this requirement, all bidders shall submit with their bid package a completed and signed Chapter 271 Political Contribution Disclosure Form (Bid Requirement 8). The Chapter 271 form will be reviewed by the district to determine whether the vendor is in compliance with N.J.A.C. 6A:23A-6.3 (a2). Detailed instructions for the completion of the Form are on the reverse side of the form. A list of agencies with elected officials covered by the political contribution disclosure requirement is included as Appendix F. <The Owner should create its own Appendix F, or download from a county-based, customizable form.>> B-12. COMMON LANGUAGE Unless otherwise specified in this document, all words shall have a common language unless the context in which they are used clearly requires a different meaning. Words in the singular number include the plural, and in the plural include the singular. Additionally, words in the masculine gender Ver /8/2011 Page 9

13 include the feminine and the neuter and when the sense so indicates, words of the neuter gender may refer to any gender. B-13. PROPRIETARY INFORMATION All information included in any proposal that is of a proprietary nature must be clearly marked as such. The Owner shall be held harmless from any claims arising from the release of proprietary information not clearly designated as such by the proposing firm. Because of the need for public accountability, the following information concerning the proposal will not be considered proprietary, even if such information is clearly marked as such: prices of proposal, non-financial information concerning compliance with specifications, guarantees and warranties. In addition, the Owner cannot guarantee that information marked proprietary may not otherwise be required to be disclosed by New Jersey law and the Owner shall not be liable for any information released in good faith compliance with the Open Public Records Act. B-14. USE OF AGENCY S NAME Except as otherwise provided in this RFP, the successful proposer shall not use the Owner s name in advertising unless the request is received in writing and approved in writing by the Owner. Any license to utilize the Owner s name will be contingent upon mutual agreement on the amount of compensation to be provided to the Owner for such use. B-15. PAYMENTS Payments will be made by the Owner in accordance with the terms and conditions of the resulting contract. In the event the Owner declines to proceed with the Program Implementation, payment will be made for the Plan Development in accordance with the resulting contract. B-16. INSURANCE a) The successful proposer and any and all subcontractors retained during the performance of the work shall continuously maintain insurance and other security for adequate protection at all his work from damage and shall protect the Owner s property from damage, injury, or loss arising in connection with the Contract. b) The successful Proposer shall: i. Completely, indemnify the Owner in regard to damage, injury, or loss pursuant to Section 16, Liability below. ii. Take all necessary precautions for the safety of personnel on the work site and shall comply with all applicable provisions of federal, state, and municipal safety laws and building codes to prevent accidents or injury to persons on, about or adjacent to the premises where the work is being performed. iii. Erect and properly maintain at all times, as required by the conditions and progress of the work, all necessary safeguards for the protection of workmen and the public. c) If it becomes necessary for the proposer, either as principal or by agent or employee, to enter upon the premises or property of the Owner in order to construct, erect, inspect, make deliveries, or remove property hereunder, the proposer hereby covenants and agrees to take, use, provide and make all proper, necessary and sufficient precautions, safeguards, and protection Ver /8/2011 Page 10

14 against the occurrence of happenings of any accidents, injuries, damages, or hurt to any person or property during the progress of the work herein covered, and to be responsible for and to indemnify and save harmless the Owner from the payment of all sums of money by reason of all, or any, such accidents, injuries, damages, or hurt that may happen or occur upon or about such work. The Owner shall be named as additional insured on all policies. d) The Proposer shall procure and maintain: i. Workers Compensation and Employer s Liability in conformance with all statutory requirements prescribed by law, including Employer s Liability at a limit of $1,000,000 each accident, which shall be maintained in force during the life of the resulting Contract by the Proposer, covering all employees engaged in performance of this Contract in accordance with the applicable statue. ii. Comprehensive General Liability Insurance, including Contractors Protective, Completed Operations and Contractual Liability Insurance with limits of not less than $1,000,000 for any one person and $1,000,000 for any one accident for bodily injury and $1,000,000 aggregate for property damage. The Property Damage Liability Insurance shall include the Broad Form Property Damage Liability Endorsement and coverage for explosion, collapse and underground (XCU) hazards. All liability coverage shall be on an occurrence basis and shall be maintained in force during the life of the Contract by the Proposer. iii. Umbrella or Excess Policy: The Proposer shall procure and maintain an Umbrella or Excess Policy with limits of not less than $10,000,000 for any one person or any one accident for bodily injury. In the event more than one insured is named in the policy, a cross-liability endorsement shall be included which provides that the employees of each of the named insured are not excluded under the policy in respect to claims that are made against other named insured. iv. Automobile Liability Insurance covering bidder for claims arising from owned, hired and non-owned vehicles with limits of not less than $1,000,000 for any one person and 1,000,000 for any one accident for bodily injury and $1,000,000 each accident for property damage, shall be maintained in force during the life of this Contract by the Proposer. v. Professional Liability Insurance (Errors and Omissions) $1,000,000 each claim. A Design Consultant and/or a Construction Management Firm who is performing Design Work must maintain Professional Liability Insurance (Errors & Omissions), with coverage retroactive to the earlier of the date of the resulting Agreement or the date of the Notice-to-Proceed for the Design Phase, covering any and all bodily injury and property damage arising from the work hereunder. Such coverage must be maintained for a period of five (5) years after the date of final payment by the Authority or if said coverage is not commercially available for such term, then for such term as is commercially available. vi. Builder s Risk Insurance When the proposer serves as General Contractor with overall contractual responsibility for delivering all of the construction services needed to complete the Project, the proposer must maintain Builder s Risk Insurance, providing coverage for all risk of physical loss or damage to the property described hereunder in Ver /8/2011 Page 11

15 an amount equal to the completed value of the work contracted. e) Certificates of the required insurance as listed above with a thirty (30) day notice of cancellation provision shall be submitted to the Owner listed as additional insured and the certificate holder listed as follows: <Owner Name> <Address> <Contact Name> All policies shall be issued by insurance companies authorized to conduct such business under the laws of the State of New Jersey and rated as A- or better, as determined by A.M. Best Company and evidence thereof must be submitted prior to commencement of the work in the resulting contract. In addition, the successful Proposer must provide copies of the policies to the Owner upon request. B-17. LIABILITY Successful Proposer agrees to assume all risk of loss and to indemnify and hold the Owner, its officers, agents, and employees, harmless from and against any and all liability, demands, claims, suits, losses, damages, causes of action, fines or judgments, including costs, attorney s and witnesses fees, and expenses incident thereto, for injuries to persons (including death) and for loss of damage to, or destruction of property (including property of the Owner) arising out of any act or omission of the successful Proposer, its employees or agents in the performance of the contract awarded in response to the proposal. Successful Proposer agrees to reimburse the Owner for all costs and attorneys fees expended by the Owner in enforcement of this indemnity provision. Successful Proposer shall indemnify, defend and hold the Owner harmless from and against any claim that all or any aspect of the work performed or goods provided as a part of this Agreement infringes upon a patent, copyright, trademark or other intellectual property right by paying all amounts in settlement of the claim or as otherwise awarded by a court of law or other judicial or quasi-judicial body having jurisdiction over any such claim. The successful Proposer shall also reimburse Owner for all reasonable expenses incurred by Owner. B-18. WARRANTIES The proposer shall warrant that the proposal is true, accurate and complete. The proposer shall provide such other warranties as are required or recommended. B-19. TERMINATION OF CONTRACT For the term of the Agreement, to the extent consistent with N.J.S.A. <40A:11-4.6> <18A:18A-4.6>, the Owner may terminate the contract in the event of a material breach by the other party. Notice of such breach shall be provided in writing and the breaching party shall be afforded a period of thirty (30) days to cure the breach. If the breach is not cured during such period, the Owner may then terminate the contract. For the ESP portion of the contract term, the Owner may terminate the contract on sixty (60) days written notice, with or without cause. Termination fees are only permitted to the extent provided in paragraph 5 of the Scope of Work. Ver /8/2011 Page 12

16 Without prejudice to any other right or remedy available to the Owner at law or in equity of any event described below, this Agreement may be terminated by the Owner if the successful proposer, or any parent company of the proposer, shall: (a) have an order for relief entered with respect to it, commence a voluntary case or have an involuntary case filed against it under any applicable bankruptcy, insolvency or other similar law now or hereafter in effect (and such order or case is not stayed, withdrawn or settled within sixty (60) days thereafter). It is the intent of the parties hereto that the provisions of Section 365(e)(2)(A) of Title 11 of the United States Code, as amended, or any successor statue thereto, be applicable to this Agreement; (b) file for reorganization, become insolvent or have a receiver or other officer having similar powers over it appointed for its affair in any court of competent jurisdiction, whether or not with its consent (unless dismissed, bonded or discharged within sixty (60) days thereafter); or, (c) admit in writing its inability to pay its debts as such debts become due. B-20. PROPOSAL GUARANTEE (Form of Proposal, Section E-7) Proposer shall submit with the bid a certified check, cashier's check or bid bond in the amount of ten percent (10%) of the total price bid of the Energy Savings Plan fee, but not in excess of $20,000, payable unconditionally to the Owner. When submitting a Bid Bond, it shall contain Power of Attorney for full amount of Bid Bond from a surety company authorized to do business in the State of New Jersey and acceptable to the Owner. The check or bond of the unsuccessful proposer(s) shall be returned pursuant to N.J.S.A. <40A:11-24(a)> <18A:18A-36>. The check or bond of the proposer to whom the contract is awarded shall be retained until a contract is executed and the required performance bond or other security is submitted. The check or bond of the successful proposer shall be forfeited if the bidder fails to enter into a contract pursuant to N.J.S.A. <40A:11-21> <18A:18A-24>. Failure to submit a bid guarantee shall result in rejection of the proposal. B-21. CONSENT OF SURETY (Proposal Requirement #1) Proposer shall submit with the proposal a Certificate (Consent of Surety) with Power of Attorney for full amount of proposal price from a Surety Company authorized to do business in the State of New Jersey and acceptable to the Owner stating that it will provide said proposer with a Performance Bond in the full amount of the proposal to develop the Energy Savings Plan. This certificate shall be obtained in order to confirm that the proposer to whom the contract is awarded will furnish Performance and Payment Bonds from an acceptable surety company on behalf of said proposer, any or all subcontractors or by each respective subcontractor or by any combination thereof which results in performance security equal to the total amount of the contract, pursuant to N.J.S.A. <40A:11-22> <18A:18A-25>. Failure to submit a consent of surety form shall result in rejection of the proposal. B-22. PERFORMANCE BOND a) Proposer shall simultaneously with the delivery of the executed contract to develop the Energy Savings Plan, submit an executed bond in the amount of one hundred percent (100%) of the accepted Ver /8/2011 Page 13

17 proposal for the Energy Savings Plan as security for the faithful performance of the Energy Savings Plan Development portion of this contract. b) Proposer shall simultaneously with the delivery of the executed contract to implement the Energy Savings Plan shall submit an executed bond in the amount of one hundred percent (100%) of the estimated value of the cost of the improvements (including but not limited to site and construction work, professional and ESCO fees, but not including value of energy savings). The performance bonds provided shall not be released until final acceptance of the whole work of the development and implementation phases and then only if any liens or claims have been satisfied. The surety on such bond or bonds shall be a duly authorized surety company authorized to do business in the State of New Jersey pursuant to N.J.S.A. 17:31-5. Failure to submit said performance bond with the executed contract for each phase of the work shall be cause for declaring the contract null and void. B-23. EMPLOYMENT PRACTICES No firm may be issued a contract unless it complies with the affirmative action provisions of N.J.S.A. 10:5-31 et seq. and N.J.A.C. 17:27-1 et seq. as found in Appendix E. B-24. BUY AMERICAN Proposer agrees that in the performance of the work only manufactured and farm products of the United States will be used in the work, wherever available pursuant to N.J.S.A. <18A:18A-20> < 40A:11-18>. B-25. GOVERNING LAWS AND DISPUTE RESOLUTION This contract is to be governed by the laws of the State of New Jersey. Proposer agrees that any action or proceeding in any way, manner or respect arising out of the RFP or Contract, or arising from any dispute or controversy arising in connection with or related to the RFP or Contract, shall be litigated only in the courts having status within <name of Owner s county> County, State of New Jersey, and the Proposer consents and submits to the jurisdiction of Superior Court in <name of Owner s county> County, New Jersey. If a dispute arises between the Owner and any entity or individual as to which the Owner is bound to the arbitration of such disputes, then the Proposer agrees that the Proposer can be joined as a party to such a mediation, binding arbitration or non-binding arbitration with respect to disputes that may arise. Any and all disputes which exist only between the Owner and the Proposer, or among the Owner, the Proposer and others as to which the Owner is not bound to the mediation, binding arbitration or nonbinding arbitration of disputes, shall be subject to the provisions of this Section. Dispute resolution practices shall not apply to disputes concerning the proposal solicitation or award process or to the formation of contents or subcontractors to be entered into pursuant to <Public School Contracts or Local Public Contracts Law>. B-26. AMERICAN RECOVERY AND REINVESTMENT ACT COMPLIANCE Ver /8/2011 Page 14

18 To the extent any portion of the Contract is being paid in part with funds made available from The American Recovery and Reinvestment Act of 2009 ( ARRA ), the Contractor, it s employees, agents, representatives or subcontractors, shall agree to be bound by all terms and conditions required by the ARRA. B-27. ASSIGNMENT OF CONTRACT Proposer may not assign, reassign, or sublet the contract award at any time during the life of the contract unless otherwise permitted by the RFP or required by law. In the event the Proposer subcontracts work to be performed during the ESIP portion of the contract, the Proposer and all subcontractors and suppliers shall comply with all requirements for public contracts applicable to the Owner, including, but not limited to the <Public School Contracts> <Local Public Contracts Law>, Equal Employment Opportunity, and Prevailing Wage Laws rules and regulations. B-28. PERIOD OF CONTRACT The term of the Agreement will be for the term of development of the Energy Savings Plan, and if accepted, construction through acceptance and extended by any applicable performances, equipment and workmanship warranties, and guarantees. Any performance guarantee must be proposed through the Energy Savings Plan and is subject to acceptance of the Owner, and may be for a term not to exceed fifteen (15) years. In the event the Owner determines not to implement the Energy Savings Plan, the successful contractor will be paid in accordance to the amounts provided in the Agreement. The license for any software provided pursuant to the term of the Agreement will be perpetual, and the proposal for software maintenance for the software will include pricing for the term of the agreement, with an initial one-year commitment for maintenance and subsequent one year renewals. B-29. PREVAILING WAGES The Successful Proposer and all subcontractors shall be subject to the provisions of the New Jersey Prevailing Wage Act, (N.J.S.A. 34:11-25 et seq.) for the construction, reconstruction, demolition, alteration, repair or maintenance of a public building in accordance with the Energy Savings Improvement Program Law, for the Implementation Phase of the Project. B-30. LICENSES The Successful Proposer shall, at its own expense, be required to provide and maintain any and all permits and licenses as required by law. B-31. PUBLIC WORKS CONTRACTOR REGISTRATION When the proposer serves as the General Contractor with overall contractual responsibility for delivering all of the construction services needed to complete the Project, the proposer shall hold a valid Public Works Contractor Registration (N.J.S.A. 34: , et seq.) pursuant to law at the time the Proposal is submitted. B-32. N.J. SALES TAX EXEMPTION Materials, supplies, and services for exclusive use in erecting, structures, or buildings, or otherwise improving, altering or repairing real property of the Owner s facilities are exempt from the State sales tax. Proposers should take into consideration the exemption provided under N.J.S.A. 54:32B-8.22 when Ver /8/2011 Page 15

19 calculating material and costs for work done under this RFP and the Energy Savings Plan. Further, the Owner cannot be charged sales tax directly as it is exempt under N.J.S.A. 54:32B-9(a)(1). B-33. ADDITIONAL INFORMATION OR ORAL PRESENTATIONS Subsequent to the receipt of Proposals, the Owner s Representative may require the submission of additional information before the award of a contract, at no charge to the Owner, in order to ascertain whether or not the services will be suitable to meet the needs as set forth in the RFP. In addition, the Owner, in its sole discretion, may request one or more Proposers to provide oral presentations to assist in the evaluation of the proposals. B-34. SUMMARY OF APPENDIX DOCUMENTS (Section F) The following documents are referenced in this Request for Proposals and should be reviewed and used as appropriate by the Proposer. They are found after Section E of this document. Appendix A: Covered Facilities Report Appendix B: Requests for Clarifications Form Appendix C: Project Case Studies Format Appendix D: Americans with Disabilities Act contract language Appendix E: Mandatory Equal Employment Opportunity Contract Language <PSCL Agencies Only> Appendix F: List of Agencies with Elected Officials Required for Political Contribution Disclosure Ver /8/2011 Page 16

20 PART C. SCOPE OF WORK C-1. INTRODUCTION AND BACKGROUND Plan: The Owner is requesting proposals from an Energy Savings Company (ESCO) to assist the <Owner Name> develop an Energy Savings Plan (ESP) designed to improve energy efficiency within the Owner facilities and if approved by the Owner, manage the implementation and installation of energy conservation, capital improvements and other measures which will be paid for with the verified savings from reduced energy costs. The facilities that are part of this proposal and areas of concern to be addressed by the ESP are listed in Appendix A. Implementation: It is also the intent, upon independent third party verification of the ESP, and upon Owner review and approval thereof, to have the ESCO implement the Energy Savings Plan by taking actions including, but not limited to, designing the improvements, preparing the bid documents, managing the construction, arranging for and overseeing commissioning, and providing training for Owner staff. The ESCO will be asked to provide a financing proposal for the implementation of the plan, though the Owner reserves the right to develop and use alternative financing. Audit: As the first step of ESP, the Owner has <participated in the New Jersey Board of Public Utilities' Local Government Energy Audit Program>or <has conducted an audit using a DPMC classified auditing firm> <Insert here link to audit or explain where completed audit may be found>. C-2. SCOPE OF WORK Covered Facilities Report (Appendix A): The Owner has reviewed the Audit and has identified the facilities to be included in the Energy Savings Plan and has also identified conditions and policy considerations concerning each facility that reflect the minimum goals of the Owner. These are reflected in Appendix A. Energy Savings Projection (Proposal Form 4): Using information provided in the Energy Audit and Appendix A, proposers shall include with their proposal, preliminary Energy Conservation Measures and estimated savings that will accrue if those measures are implemented. This Energy Savings Projection and the associated Energy Conservation Measures are intended to be and will be treated as a good-faith preliminary estimate based on the Owner s audit and proposer s analysis, and is subject to modification in the final Energy Savings Plan. Subject to the foregoing conditions, proposers are encouraged to make recommendations and proposals that expand the scope of the Covered Facilities and include recommendations and explanations of alternatives that may provide additional energy savings. C-3. ENERGY SAVINGS PLAN DEVELOPMENT The ESP is the core of the ESIP process. It describes the energy conservation measures that are planned and the cost calculations that support how the plan will pay for itself in reduced energy costs. Pursuant to the ESIP law, the ESP must address the following elements as appropriate to the circumstances: a) the results of the energy audit; Ver /8/2011 Page 17