Bill Text: NJ A4535 | 2018-2019 | Regular Session | Amended

New Jersey Assembly Bill 4535 (Prior Session Legislation)

Bill Title: Establishes the "Energy Infrastructure Public-Private Partnership Act."

Spectrum: Bipartisan Bill

Status: (Introduced - Dead) 2020-01-13 - Substituted by S2958 (2R) [A4535 Detail]

Download: New_Jersey-2018-A4535-Amended.html

[First Reprint]

ASSEMBLY, No. 4535

STATE OF NEW JERSEY

218th LEGISLATURE

INTRODUCED OCTOBER 15, 2018

Sponsored by:

Assemblyman ANDREW ZWICKER

District 16 (Hunterdon, Mercer, Middlesex and Somerset)

Assemblyman CHRISTOPHER P. DEPHILLIPS

District 40 (Bergen, Essex, Morris and Passaic)

Assemblywoman BETTYLOU DECROCE

District 26 (Essex, Morris and Passaic)

Co-Sponsored by:

Assemblymen McGuckin and A.M.Bucco

SYNOPSIS

Establishes the "Energy Infrastructure Public-Private Partnership Act."

CURRENT VERSION OF TEXT

As reported by the Assembly Science, Innovation and Technology Committee on May 16, 2019, with amendments.

An Act concerning energy infrastructure public-private partnerships and supplementing Title 52 of the Revised Statutes and amending P.L.1971, c.198 and N.J.S.18A:18A-42.

Be It Enacted by the Senate and General Assembly of the State of New Jersey:

1. (New section) This act shall be known and may be cited as the "Energy Infrastructure Public-Private Partnerships Act."

2. (New section) 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 availability of reliable and resilient state-of-the-art energy resources 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 Winter Storm Quinn, Hurricane Irene, and Superstorm Sandy, and the devastation they inflicted on the State, has 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 resilient service to the State;

(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 energy resources available to State, county, and municipal facilities that provide critical lifeline services, including medical facilities, police and fire departments, water and wastewater treatment facilities, shelters, colleges, universities, schools, and prisons;

(4) The reliability, resiliency, and efficiency of the State's energy infrastructure will be improved if the State encourages the development of the energy-related projects contemplated by P.L. , c. (C. ) (pending before the Legislature as this bill), which will reduce the vulnerability of critical governmental facilities to threats posed by weather and other exogenous factors, minimize equipment failures caused by deterioration, disrepair and obsolescence, enhance the production and delivery of energy, improve the energy efficiency of governmental facilities, reduce the demand for energy, 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 constraints. Governmental entities have witnessed dramatic reductions in available revenues as a consequence of the recent recession and major storm events, among other reasons, which have adversely affected the ability of State, county, and municipal governments 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 energy-related public-private partnerships that will enable governmental entities to partner with private entities to develop needed state-of-the-art energy projects and obviate or minimize the need for capital investments in energy projects by governmental entities, taxpayers, and energy public utility ratepayers;

(2) In order to foster the energy projects contemplated by P.L. , c. (C. ) (pending before the Legislature as this bill), it is necessary and appropriate for the Legislature to authorize the use of public-private partnerships to leverage private sector financial resources and expertise and permit governmental and private entities to share the responsibilities and benefits of these 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, resilience and efficiency of the State's energy infrastructure by introducing state-of-the-art energy technologies that will mitigate current vulnerabilities to major storm events, harden critical infrastructure, energy generation and delivery systems, enhance redundancy in energy supply, promote greater emergency preparedness, enhance fuel supply diversity, increase energy efficiency, expand the use of renewable energy resources, reduce energy demand, energy costs and greenhouse gas emissions, and promote economic development and local job creation, thereby ensuring 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 managerial expertise of the private sector to enable governmental entities that otherwise lack the necessary resources or expertise, to design, develop, own, manage, operate, and maintain needed energy infrastructure projects.

3. (New section) 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.

"Authority" means the New Jersey Economic Development Authority or any successor agency.

"District energy system" means an on-site generation facility, as defined in section 3 of P.L.1999, c.23 (C.48:3-51), that provides thermal or electric energy services to end-use customers for use for heating or cooling, or both, regardless of whether the customer is located on property that is separated from the property on which the on-site generation facility is located by more than one easement, public thoroughfare, or transportation or utility-owned right-of-way.

"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 ¹, in whole or in part,¹ for a new or existing facility or facilities, owned by a governmental entity, involving the application of energy efficiency, energy conservation, ¹energy generation,¹ energy optimization, renewable and non-carbon-emitting energy technologies, or demand side management measures including, but not limited to:

energy efficient appliances, lighting, motors, and other energy or water conservation measures;

smart metering and smart grid technologies and demand response; ¹[and]¹

distributed electric generation resources including, but not limited to, cogeneration, combined heat and power and on-site generation facilities, district energy systems, and microgrids;

¹biogas, waste-to-energy and wastewater-to-energy technologies, and energy storage technologies; and¹

Class I ¹renewable energy¹ and Class II renewable energy ¹[resources]¹, as those terms are defined in section 3 of P.L.1999, c.23 (C.48:3-51) ¹[, including solar photovoltaic technologies, wind energy, geothermal energy, biomass, biogas, waste-to-energy and wastewater-to-energy technologies, energy storage technologies, resource recovery, and hydroelectric power facilities]¹.

"Energy-related project" shall not include a self-funded energy efficiency project that is an energy savings improvement program undertaken pursuant to the provisions of P.L.2009, c.4 (C.18A:18A-4.6 et al.) and P.L.2012, c.55 (C.52:34-25.1 et al.).

"Governmental entity" means the State, its subdivisions, and ¹[the departments, agencies, commissions, authorities, boards, and instrumentalities] any department, agency, commission, authority, board, or instrumentality¹ thereof, a county, a municipality, a board of education, a State college or university, a county ¹[community]¹ college, a regional or municipal ¹[utility or utility] utilities¹ authority, ¹a quasi-State agency, a State-created corporation,¹and a municipal corporation. "Governmental entity" may include a combination of governmental entities as defined herein, but shall not mean a municipal electric utility established pursuant to R.S.40:62-12.

"Microgrid" means ¹[a group] an independent system¹ of interconnected customer loads and distributed ¹[energy] electric generation¹ resources including, but not limited to, combined heat and power, cogeneration ¹[,] and¹ on-site generation ¹facilities¹, district energy ¹[system] systems¹, ¹Class I renewable energy and Class II¹ renewable energy ¹[generation]¹, dispatchable generation, and energy storage facilities, located within a clearly defined electrical or geographic boundary, that acts as a single controllable entity and ¹[is] may be¹ capable of disconnection from the utility grid to enable the microgrid to operate in both utility grid-connected and ¹[islanded] non-grid connected¹ modes. ¹[Notwithstanding the provisions of any other law, rule, regulation, decision, or order to the contrary, a distributed energy resource that is included as part of a microgrid shall not be required to be located on the property, or on a property contiguous to the property on which a customer that is interconnected with the microgrid is located, or be otherwise subject to any form of contiguity or proximity-related requirement, other than the requirement that all interconnected distributed energy resources and customer loads that comprise the microgrid be located within the electrical or geographic boundary of the microgrid. Nor shall a microgrid be limited with regard to the number or type of customers that may be served by the microgrid, subject to the limitation that all customers served by the microgrid must be located within the electrical or geographic boundary of the microgrid. A microgrid may utilize privately-owned distribution wires to interconnect the distributed energy resources with customers served by the microgrid and that are located within the electric or geographic boundary of the microgrid.]¹ A microgrid shall be considered an "on-site generation facility" for the purposes of sections 3 and 28 of P.L.1999, c.23, (C.48:3-51 and C.48:3-77.) A microgrid shall not be considered a public utility as defined in R.S.48:2-13.

"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 include a ¹["commercial] commercial¹, institutional, and industrial ¹[entity" as the term is mentioned in] entity eligible for financial assistance pursuant to paragraph (1) of subsection b. of¹ section 7 of P.L.2007, c.340 (C.26:2C-51). ¹["Private entity" shall not include a public utility as defined in R.S.48:2-13, but shall include an affiliate of a public utility that is not subject to regulation pursuant to Title 48 of the Revised Statutes or subject to the board's jurisdiction.]¹

"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. (New section) 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, developmental, operational, managerial and administrative responsibility for one or more energy-related projects, in partnership with a governmental entity. Energy-related projects may involve the design, 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 energy-related project, as the case may be, and the governmental entity retains an ownership or leasehold interest in 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 the 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 pursuant to sections 7 and 8 of P.L. , c. (C. ) (pending before the Legislature as this bill) and any other applicable law.

5. (New section) 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 design, construction, reconstruction, alteration, improvement, development or redevelopment of one or more buildings, structures, or facilities owned, or to be owned, by a governmental entity. The public-private partnership agreement may provide for the inclusion of buildings, structures or facilities owned, or to be owned, by one or more non-governmental entities. An energy-related project shall be designed to enable a governmental entity to more reliably, efficiently, and cost-effectively generate, distribute, conserve, store, consume, and acquire energy; improve the reliability and resiliency of its energy infrastructure; reduce greenhouse gas emissions; diversify its sources of energy supply; create jobs; and foster economic development.

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 to the proposal, 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. (New section) a. Notwithstanding the provisions of any law, rule, regulation, decision, or order to the contrary, a governmental entity for which a private entity assumes financial, operational, developmental, managerial, 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 otherwise specifically set forth in P.L. , c. (C. ) (pending before the Legislature as this bill) including the provision related to the 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 authority, and any energy-related project undertaken pursuant to P.L. , c. (C. ) (pending before the Legislature as this bill) of which the authority becomes an owner or lessee, or which is situated on land of which the 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. (New section) a. (1) There is hereby established in the authority an Energy Public-Private Partnership Unit or "Energy P3 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 the board, as the Energy P3 Unit and authority shall deem 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. The costs associated with the establishment and operation of the Energy P3 Unit ¹[shall] may¹ be funded from revenues received by the authority from the "Global Warming Solutions Fund" created pursuant to section 6 of P.L.2007, c.340 (C.26:2C-50), and may be repaid from fees collected from private entities pursuant to subsection c. of this section.

(2) Within 12 months 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;

(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 authority shall identify the resources and personnel of the authority and other participating agencies, departments, boards, and authorities, including the board, that are deemed necessary and appropriate to staff and support the Energy P3 Unit. The authority may retain one or more qualified private consultants with relevant expertise to provide the technical assistance and resources deemed necessary and appropriate to assist the Energy P3 Unit.

c. The authority shall provide sufficient funding 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), including the retention of one or more private consultants to assure compliance with the duties and responsibilities established for the Energy P3 Unit by this section. The Energy P3 Unit shall 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. The Energy P3 Unit may establish standard project development or project review fees for energy-related projects that are not completed for any reason.

d.¹Notwithstanding the provisions of any law, rule, regulation, decision, or order to the contrary, the authority may, without the requirement of advertisement for public bid and bidding therefor, negotiate and award professional service contracts, containing fee and contract duration terms deemed necessary and appropriate by the authority, to one or more private consultants deemed by the authority to be qualified, by training and experience, to provide the technical assistance required by the Energy P3 Unit to fulfill its responsibilities pursuant to P.L. , c. (C. ) (pending before the Legislature as this bill).

e.¹ The authority 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). The authority may be assisted as appropriate by other participating agencies, departments, boards, and authorities, including the board and the Division of Purchase and Property in the Department of the Treasury, in the promulgation of necessary rules and regulations.

¹[e.] f.¹ The authority 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, including one or more private consultants, 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 authority 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. (New section) 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 certified 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, plant, organization and personnel of the private entity, and 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 energy-related project that the private entity shall be deemed qualified to develop, design, build, finance, own, operate, or maintain, or a combination ¹[of]¹ thereof, as the case may be. 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 located within 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 personnel, equipment and other necessary resources sufficient for 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 the private entity to develop, design, build, finance, own, operate, and maintain, as the case may be, 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 60 business days after receipt of certified 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 the classification is made. Each classification shall be subject to expiration and renewal upon 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 authority or its designee, and may present the 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 authority 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. Each governmental entity that seeks to develop an energy-related project pursuant to P.L. c. (C. ) (pending before the Legislature as this bill) shall be provided with the complete list of approved private entities that have been qualified by the Energy P3 Unit for the type of energy-related project proposed by the governmental entity. The Energy P3 Unit shall post the list on an Internet website maintained by or for the Energy P3 Unit and shall update the list monthly.

9. (New section) a. For each proposed energy-related project, a governmental entity shall solicit proposals from the 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. Each private entity proposal shall detail how the private entity would design, develop, finance, build, operate, or maintain, as the case may be, the energy-related project, and summarize the experience of the private entity with comparable energy-related projects and all proposed team members and subcontractors. A separate procurement shall not be required for a subcontractor that is part of the private entity's proposal to the governmental entity. 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 five private entities deemed to be the most qualified for 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 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 project scope of work, identification of proposed equipment and measures, subcontractors, projected project costs, and, if applicable, long term maintenance and operations costs and anticipated energy or other cost savings. If the governmental entity so elects, it may request supplemental information or revised proposals from the private entities and may require each private entity to make an oral presentation, and to respond to questions regarding the private entity's proposal. 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 specify the manner in which the price term shall be bid by a private entity as part of a proposal for an energy-related project including, but not limited to, fixed price, guaranteed maximum price, cost-plus open book, cost-plus open book with guaranteed maximum price, or power purchase agreement. If the fixed price option is selected by the governmental entity, the private entity must fully and accurately disclose, in a single line item entry, the total installed cost of the proposed energy-related project. The fixed cost quoted shall include, but not be limited to, all costs for all products, measures and equipment, fees for all subcontractors, installation labor, and professional, administrative and management services necessary to fully develop and implement the proposed energy-related project, including procurement of all required licenses, permits, and approvals from governmental entities with jurisdiction over the energy-related project. Any proposal by a private entity which includes a fixed price bid that does not comply with the requirements of this section shall be rejected by the governmental entity and the Energy P3 Unit.

d. 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, with price and other factors considered. 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) if applicable, any cost savings associated with the energy-related project;

(8) the public benefits of the energy-related project, including economic development, job creation, and reduced electric demand and greenhouse gas emissions; and

(9) the experience and capability of the private entity in the implementation of comparable energy-related projects.

e. The governmental entity shall negotiate a public-private partnership agreement for the energy-related project with the private entity selected as having submitted the most advantageous proposal in accordance with the selection standards set forth in the section. If the governmental entity elected the fixed price option described in this section, the price term included in any public private partnership agreement shall not exceed, by more than ten percent, the quoted price for the same scope of work presented during the procurement phase of the energy-related project. In the event that the price term presented by a private entity for inclusion in a public-private partnership agreement shall exceed, by more than ten percent, the private entity's original fixed price quoted for the same scope of work, the governmental entity may, at its sole election, terminate negotiations with the private entity, without cost or penalty to the governmental entity.

f. 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 have submitted the next best proposal in accordance with the selection standards set forth in this section. If the governmental entity is unable to negotiate a public-private partnership agreement with the second selected private entity, the governmental entity shall terminate negotiations and commence negotiations with the third selected private entity. If the governmental entity is unable to negotiate a public-private partnership agreement with the third selected private entity, the governmental entity shall continue to negotiate with the remaining private entities that submitted proposals, in order of selection, as are necessary in order to enable the governmental entity to conclude a satisfactory public-private partnership agreement with a qualified private entity. If the governmental entity is unable 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. (New section) 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:

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. (New section) 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, including the "Global Warming Solutions Fund," 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. Notwithstanding the provisions of any law, rule, regulation, decision, or order to the contrary, funding available to an energy-related project from the "Global Warming Solutions Fund" shall be incremental to funding available to an energy-related project from all other sources including, but not limited to, the New Jersey Clean Energy Program administered by the board.

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, the power 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.

c. 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 to enter into 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. (New section) 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, nonprofit business entity, foreign or domestic, or business entity wholly owned by a nonprofit 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 nonprofit business entity, foreign or domestic, or a business entity wholly owned by a nonprofit business entity, and the energy-related project furthers the purposes of the governmental entity.

13. (New section) 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. (New section) 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 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. A 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.

c. A private entity selected by a governmental entity to develop an energy-related project pursuant to P.L. , c. (C. ) (pending before the Legislature as this bill), and all affiliates and subcontractors of the private entity, shall comply with the provisions of "The Public Works Contractor Registration Act," P.L.1999, c. 238 (C.34:11-56.48 et seq.).

15. (New section) 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. (New section) 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, but not be limited to:

(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 service agreement;

(5) a detailed project schedule, including a timetable for completion of all predevelopment, development, and placed-in-service tasks and milestones, which shall 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) if applicable, a demonstration of projected energy cost savings; and

(8) 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 the 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.

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 of 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.

17. (New section) a. Notwithstanding the provisions of any law, rule, regulation, decision, 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, rule, regulation, decision, 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, rule, regulation, decision, 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 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, or any portion thereof, or records of any communications relating to the unsolicited proposal, 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. (New section) Notwithstanding the provisions of section 2 of P.L.1999, c.440 (C.40A:11-4.2), section 46 of P.L.1999, c.440 (C.18A:18A-4.2), and P.L.1954, c.48 (C.52:34-6 et seq.), and any other law, regulation, decision, or order to the contrary, a public-private partnership agreement between a governmental entity and a private entity to design, develop, finance, build, own, operate or maintain, or a combination thereof, an energy-related project in accordance with the provisions of P.L. , c. (C. ) (pending before the Legislature as this bill), may have a term not to exceed 20 years. A public-private partnership agreement between a governmental entity and a private entity to design, develop, finance, build, own, operate or maintain an energy-related project that includes a combined heat and power facility, cogeneration facility, or on-site generation facility, as those terms are defined pursuant to section 3 of P.L.1999, c.23 (C.48:3-51), a district energy system, a microgrid, or a distributed energy resource in accordance with the provisions of P.L. , c. (C. ) (pending before the Legislature as this bill) may have a term not to exceed 25 years, which term shall commence after construction of the combined heat and power facility, cogeneration facility, on-site generation facility, district energy system, microgrid, or distributed energy resource has been completed and commercial operation of the facility has commenced. A public-private partnership agreement between a governmental entity and a private entity may authorize the entry of a long term service agreement that may include routine and preventive maintenance and overhaul and rebuild coverage, for coverage periods of not less than 10 years, up to the period coinciding with the useful life of the equipment included within the scope of the service agreement.

¹19. (New section) Notwithstanding the provisions of any law, rule, regulation, decision, or order to the contrary, a distributed electric generation resource that is included as part of a microgrid shall not be required to be located on the property, or on a property contiguous to the property, on which a customer that is interconnected with the microgrid is located, or be otherwise subject to any form of contiguity or proximity-related requirement, provided that all interconnected distributed electric generation resources and customer loads that comprise the microgrid shall be located within the electrical or geographic boundary of the microgrid, and the microgrid shall satisfy the engineering and safety requirements and procedures of the electric public utility to which the microgrid is interconnected. A microgrid shall not be limited with regard to the number or type of customers that may be served by the microgrid, provided that all customers served by the microgrid shall be located within the electrical or geographic boundary of the microgrid and shall include a governmental entity. A net metered solar facility shall be permitted to operate on the same circuit as a combined heat and power, cogeneration, or on-site generation facility and obtain authorized credits for solar energy produced by the net metered solar facility if the output of the net metered solar facility is separately metered, and the total power exported to the power grid by the solar facility does not exceed the total power imported from the power grid to the customer or customers served by the solar facility, as measured on an annualized basis. A private entity or a government entity that seeks to operate a net metered solar facility on the same circuit as a combined heat and power, cogeneration, or on-site generation facility shall satisfy all other regulatory and utility requirements applicable to the facility and necessary applications, including, but not limited to, all PJM Interconnection and electric public utility interconnection policies, practices, and procedures, and electric public utility engineering analyses concerning the capacity of a circuit to accommodate both facilities. A microgrid may utilize privately-owned distribution wires to interconnect a distributed electric generation resource with customers served by the microgrid and that are located within the electric or geographic boundary of the microgrid. A microgrid that attaches to or collocates on electric public utility poles and distribution wires that are part of an electric public utility distribution system shall be developed utilizing only skilled labor that is knowledgeable regarding the electric public utility's distribution system and safety practices, and shall compensate the electric public utility for the use of its facilities.¹

¹[19.] 20.¹ (New section) The provisions of P.L.2009, c.136 (C.52:18-42 et seq.) shall not apply to any energy-related project developed pursuant to P.L. , c. (C. ) (pending before the Legislature as this bill).

¹[20.] 21.¹(New section) Nothing in P.L. , c. (C. ) (pending before the Legislature as this bill) shall ¹be construed to¹ limit the powers of the Office of the State Comptroller pursuant to P.L.2007, c.52 (C.52:15C-1 et al.) ¹, or be construed to limit the authority of the board¹.

¹[21. Section 15 of P.L.1971, c.198 (C.40A:11-15) is amended to read as follows:

15. All contracts for the provision or performance of goods or services shall be awarded for a period not to exceed 24 consecutive months, except that contracts for professional services pursuant to subparagraph (i) of paragraph (a) of subsection (1) of section 5 of P.L.1971, c.198 (C.40A:11-5) shall be awarded for a period not to exceed 12 consecutive months. Contracts may be awarded for longer periods of time as follows:

(1) Supplying of:

(a) (Deleted by amendment, P.L.1996, c.113.)

(b) (Deleted by amendment, P.L.1996, c.113.)

(c) Thermal energy produced by a cogeneration facility, for use for heating or air conditioning or both, for any term not exceeding 40 years, when the contract is approved by the Board of Public Utilities. For the purposes of this paragraph, "cogeneration" means the simultaneous production in one facility of electric power and other forms of useful energy such as heating or process steam;

(2) (Deleted by amendment, P.L.1977, c.53.)

(3) The collection and disposal of municipal solid waste, the collection and disposition of recyclable material, or the disposal of sewage sludge, for any term not exceeding in the aggregate, five years;

(4) The collection and recycling of methane gas from a sanitary landfill facility, for any term not exceeding 25 years, when the contract is in conformance with a district solid waste management plan approved pursuant to P.L.1970, c.39 (C.13:1E-1 et seq.), and with the approval of the Division of Local Government Services in the Department of Community Affairs and the Department of Environmental Protection. The contracting unit shall award the contract to the highest responsible bidder, notwithstanding that the contract price may be in excess of the amount of any necessarily related administrative expenses; except that if the contract requires the contracting unit to expend funds only, the contracting unit shall award the contract to the lowest responsible bidder. The approval by the Division of Local Government Services of public bidding requirements shall not be required for those contracts exempted therefrom pursuant to section 5 of P.L.1971, c.198 (C.40A:11-5);

(5) Data processing service, for any term of not more than seven years;

(6) Insurance, including the purchase of insurance coverages, insurance consulting or administrative services, claims administration services and including participation in a joint self-insurance fund, risk management program or related services provided by a contracting unit insurance group, or participation in an insurance fund established by a local unit pursuant to N.J.S.40A:10-6, or a joint insurance fund established pursuant to P.L.1983, c.372 (C.40A:10-36 et seq.), for any term of not more than three years;

(7) Leasing or servicing of (a) automobiles, motor vehicles, machinery, and equipment of every nature and kind, for a period not to exceed five years, or (b) machinery and equipment used in the generation of electricity by a municipal shared services energy authority established pursuant to section 4 of P.L.2015, c.129 (C.40A:66-4), or a contracting unit engaged in the generation of electricity, for a period not to exceed 20 years; provided, however, a contract shall be awarded only subject to and in accordance with the rules and regulations promulgated by the Director of the Division of Local Government Services in the Department of Community Affairs;

(8) The supplying of any product or the rendering of any service by a company providing voice, data, transmission, or switching services for a term not exceeding five years;

(9) Any single project for the construction, reconstruction, or rehabilitation of any public building, structure, or facility, or any public works project, including the retention of the services of any architect or engineer in connection therewith, for the length of time authorized and necessary for the completion of the actual construction;

(10) The providing of food services for any term not exceeding three years;

(11) On-site inspections and plan review services undertaken by private agencies pursuant to the "State Uniform Construction Code Act," P.L.1975, c.217 (C.52:27D-119 et seq.) for any term of not more than three years;

(12) (Deleted by amendment, P.L.2009, c.4.)[.]

(13) (Deleted by amendment, P.L.1999, c.440.)

(14) (Deleted by amendment, P.L.1999, c.440.)

(15) Leasing of motor vehicles, machinery, and other equipment primarily used to fight fires, for a term not to exceed ten years, when the contract includes an option to purchase, subject to and in accordance with rules and regulations promulgated by the Director of the Division of Local Government Services in the Department of Community Affairs;

(16) The provision of water supply services or the designing, financing, construction, operation, or maintenance, or any combination thereof, of a water supply facility, or any component part or parts thereof, including a water filtration system, for a period not to exceed 40 years, when the contract for these services is approved by the Division of Local Government Services in the Department of Community Affairs, the Board of Public Utilities, and the Department of Environmental Protection pursuant to P.L.1985, c.37 (C.58:26-1 et al.), except that no approvals shall be required for those contracts otherwise exempted pursuant to subsection (30), (31), (34), (35), or (43) of this section. For the purposes of this subsection, "water supply services" means any service provided by a water supply facility; "water filtration system" means any equipment, plants, structures, machinery, apparatus, or land, or any combination thereof, acquired, used, constructed, rehabilitated, or operated for the collection, impoundment, storage, improvement, filtration, or other treatment of drinking water for the purposes of purifying and enhancing water quality and insuring its potability prior to the distribution of the drinking water to the general public for human consumption, including plants and works, and other personal property and appurtenances necessary for their use or operation; and "water supply facility" means and refers to the real property and the plants, structures, or interconnections between existing water supply facilities, machinery and equipment and other property, real, personal, and mixed, acquired, constructed, or operated, or to be acquired, constructed, or operated, in whole or in part by or on behalf of a political subdivision of the State or any agency thereof, for the purpose of augmenting the natural water resources of the State and making available an increased supply of water for all uses, or of conserving existing water resources, and any and all appurtenances necessary, useful, or convenient for the collecting, impounding, storing, improving, treating, filtering, conserving, or transmitting of water and for the preservation and protection of these resources and facilities and providing for the conservation and development of future water supply resources;

(17) The provision of resource recovery services by a qualified vendor, the disposal of the solid waste delivered for disposal which cannot be processed by a resource recovery facility or the residual ash generated at a resource recovery facility, including hazardous waste and recovered metals and other materials for reuse, or the design, financing, construction, operation, or maintenance of a resource recovery facility for a period not to exceed 40 years when the contract is approved by the Division of Local Government Services in the Department of Community Affairs, and the Department of Environmental Protection pursuant to P.L.1985, c.38 (C.13:1E-136 et al.); and when the resource recovery facility is in conformance with a district solid waste management plan approved pursuant to P.L.1970, c.39 (C.13:1E-1 et seq.). For the purposes of this subsection, "resource recovery facility" means a solid waste facility constructed and operated for the incineration of solid waste for energy production and the recovery of metals and other materials for reuse; or a mechanized composting facility, or any other facility constructed or operated for the collection, separation, recycling, and recovery of metals, glass, paper, and other materials for reuse or for energy production; and "residual ash" means the bottom ash, fly ash, or any combination thereof, resulting from the combustion of solid waste at a resource recovery facility;

(18) The sale of electricity or thermal energy, or both, produced by a resource recovery facility for a period not to exceed 40 years when the contract is approved by the Board of Public Utilities, and when the resource recovery facility is in conformance with a district solid waste management plan approved pursuant to P.L.1970, c.39 (C.13:1E-1 et seq.). For the purposes of this subsection, "resource recovery facility" means a solid waste facility constructed and operated for the incineration of solid waste for energy production and the recovery of metals and other materials for reuse; or a mechanized composting facility, or any other facility constructed or operated for the collection, separation, recycling, and recovery of metals, glass, paper, and other materials for reuse or for energy production;

(19) The provision of wastewater treatment services or the designing, financing, construction, operation, or maintenance, or any combination thereof, of a wastewater treatment system, or any component part or parts thereof, for a period not to exceed 40 years, when the contract for these services is approved by the Division of Local Government Services in the Department of Community Affairs and the Department of Environmental Protection pursuant to P.L.1985, c.72 (C.58:27-1 et al.), except that no approvals shall be required for those contracts otherwise exempted pursuant to subsection (36) or (43) of this section. For the purposes of this subsection, "wastewater treatment services" means any services provided by a wastewater treatment system, and "wastewater treatment system" means equipment, plants, structures, machinery, apparatus, or land, or any combination thereof, acquired, used, constructed, or operated for the storage, collection, reduction, recycling, reclamation, disposal, separation, or other treatment of wastewater or sewage sludge, or for the final disposal of residues resulting from the treatment of wastewater, including, but not limited to, pumping and ventilating stations, facilities, plants and works, connections, outfall sewers, interceptors, trunk lines, and other personal property and appurtenances necessary for their operation;

(20) The supplying of goods or services for the purpose of lighting public streets, for a term not to exceed five years;

(21) The provision of emergency medical services for a term not to exceed five years;

(22) Towing and storage contracts, awarded pursuant to paragraph u. of subsection (1) of section 5 of P.L.1971, c.198 (C.40A:11-5) for any term not exceeding three years;

(23) Fuel for the purpose of generating electricity for a term not to exceed eight years;

(24) The purchase of electricity or administrative or dispatching services related to the transmission of electricity, from a supplier of electricity subject to the jurisdiction of a federal regulatory agency, from a qualifying small power producing facility or qualifying cogeneration facility, as defined by 16 U.S.C. s.796, or from any supplier of electricity within any regional transmission organization or independent system operator or from an organization or operator or their successors, by a contracting unit engaged in the generation of electricity for retail sale, as of May 24, 1991, for a term not to exceed 40 years, or by a contracting unit engaged solely in the distribution of electricity for retail sale for a term not to exceed ten years, except that a contract with a contracting unit, engaged solely in the distribution of electricity for retail sale, in excess of ten years, shall require the written approval of the Director of the Division of Local Government Services. If the director fails to respond in writing to the contracting unit within 10 business days, the contract shall be deemed approved;

(25) Basic life support services, for a period not to exceed five years. For the purposes of this subsection, "basic life support" means a basic level of prehospital care, which includes but need not be limited to patient stabilization, airway clearance, cardiopulmonary resuscitation, hemorrhage control, initial wound care, and fracture stabilization;

(26) (Deleted by amendment, P.L.1999, c.440.)

(27) The provision of transportation services to an elderly person, an individual with a disability, or an indigent person for any term of not more than three years. For the purposes of this subsection, "elderly person" means a person who is 60 years of age or older. "Individual with a disability" means a person of any age who, by reason of illness, injury, age, congenital malfunction, or other permanent or temporary incapacity or disability, are unable, without special facilities or special planning or design to utilize mass transportation facilities and services as effectively as persons who are not so affected. "Indigent person " means a person of any age whose income does not exceed 100 percent of the poverty level, adjusted for family size, established and adjusted under section 673(2) of subtitle B, the "Community Services Block Grant Act," Pub.L.97-35 (42 U.S.C. s.9902 (2));

(28) The supplying of liquid oxygen or other chemicals, for a term not to exceed five years, when the contract includes the installation of tanks or other storage facilities by the supplier, on or near the premises of the contracting unit;

(29) The performance of patient care services by contracted medical staff at county hospitals, correction facilities, and long term care facilities, for any term of not more than three years;

(30) The acquisition of an equitable interest in a water supply facility pursuant to section 2 of P.L.1993, c.381 (C.58:28-2), or a contract entered into pursuant to the "County and Municipal Water Supply Act," N.J.S.40A:31-1 et seq., if the contract is entered into no later than January 7, 1995, for any term of not more than forty years;

(31) The provision of water supply services or the financing, construction, operation, or maintenance or any combination thereof, of a water supply facility or any component part or parts thereof, by a partnership or copartnership established pursuant to a contract authorized under section 2 of P.L.1993, c.381 (C.58:28-2), for a period not to exceed 40 years;

(32) Laundry service and the rental, supply, and cleaning of uniforms for any term of not more than three years;

(33) The supplying of any product or the rendering of any service, including consulting services, by a cemetery management company for the maintenance and preservation of a municipal cemetery operating pursuant to the "New Jersey Cemetery Act," N.J.S.8A:1-1 et seq., for a term not exceeding 15 years;

(34) A contract between a public entity and a private firm pursuant to P.L.1995, c.101 (C.58:26-19 et al.) for the provision of water supply services may be entered into for any term which, when all optional extension periods are added, may not exceed 40 years;

(35) A contract for the purchase of a supply of water from a public utility company subject to the jurisdiction of the Board of Public Utilities in accordance with tariffs and schedules of charges made, charged or exacted or contracts filed with the Board of Public Utilities, for any term of not more than 40 years;

(36) A contract between a public entity and a private firm or public authority pursuant to P.L.1995, c.216 (C.58:27-19 et al.) for the provision of wastewater treatment services may be entered into for any term of not more than 40 years, including all optional extension periods;

(37) The operation and management of a facility under a license issued or permit approved by the Department of Environmental Protection, including a wastewater treatment system or a water supply or distribution facility, as the case may be, for any term of not more than ten years. For the purposes of this subsection, "wastewater treatment system" refers to facilities operated or maintained for the storage, collection, reduction, disposal, or other treatment of wastewater or sewage sludge, remediation of groundwater contamination, stormwater runoff, or the final disposal of residues resulting from the treatment of wastewater; and "water supply or distribution facility" refers to facilities operated or maintained for augmenting the natural water resources of the State, increasing the supply of water, conserving existing water resources, or distributing water to users;

(38) Municipal solid waste collection from facilities owned by a contracting unit, for any term of not more than three years;

(39) Fuel for heating purposes, for any term of not more than three years;

(40) Fuel or oil for use in motor vehicles for any term of not more than three years;

(41) Plowing and removal of snow and ice for any term of not more than three years;

(42) Purchases made under a contract awarded by the Director of the Division of Purchase and Property in the Department of the Treasury for use by counties, municipalities, or other contracting units pursuant to section 3 of P.L.1969, c.104 (C.52:25-16.1), for a term not to exceed the term of that contract;

(43) A contract between the governing body of a city of the first class and a duly incorporated nonprofit association for the provision of water supply services as defined in subsection (16) of this section, or wastewater treatment services as defined in subsection (19) of this section, may be entered into for a period not to exceed 40 years;

(44) The purchase of electricity generated through class I renewable energy or from a power production facility that is fueled by methane gas extracted from a landfill in the county of the contacting unit for any term not exceeding 25 years;

(45) The provision or performance of goods or services for the purpose of producing class I renewable energy or class II renewable energy, as those terms are defined in section 3 of P.L.1999, c.23 (C.48:3-51), at, or adjacent to, buildings owned by, or operations conducted by, the contracting unit, the entire price of which is to be established as a percentage of the resultant savings in energy costs, for a term not to exceed 15 years; provided, however, that a contract shall be entered into only subject to and in accordance with guidelines promulgated by the Board of Public Utilities establishing a methodology for computing energy cost savings and energy generation costs;

(46) A power supply contract, as defined pursuant to section 3 of P.L.2015, c.129 (C.40A:66-3), between a member municipality as defined pursuant to section 3 of P.L.2015, c.129 (C.40A:66-3), and the municipal shared services energy authority established pursuant to the provisions of P.L.2015, c.129 (C.40A:66-1 et al.) to meet the electric power needs of its members, for the lease, operation, or management of electric generation within a member municipality's corporate limits and franchise area or the purchase of electricity, or the purchase of fuel for generating units for a term not to exceed 40 years; [and]

(47) A contract entered into pursuant to paragraph (2) of subsection a. of section 6 of P.L.2006, c.46 (C.30:9-23.20) between a county hospital authority and a manager for the management, operation, and maintenance of a hospital owned by the authority or the county for a term not to exceed 20 years, provided, however, that a contract entered into pursuant to paragraph (2) of subsection a. of section 6 of P.L.2006, c.46 (C.30:9-23.20) may be renewed for two additional periods, not to exceed five years each[.] ; and

(48) The sale of electricity or thermal energy, or both, produced by a combined heat and power facility, cogeneration facility, or on-site generation facility, as those terms are defined pursuant to section 3 of P.L.1999, c.23 (C.48:3-51), a microgrid, as that term is defined in section 3 of P.L. , c. (C. ) (pending before the Legislature as this bill), a district energy system, or a distributed energy resource, for a period not to exceed 25 years, which period shall commence after construction of the facility has been completed and commercial operation of the facility has commenced.

Any contract for services other than professional services, the statutory length of which contract is for three years or less, may include provisions for no more than one two-year, or two one-year, extensions, subject to the following limitations: a. The contract shall be awarded by resolution of the governing body upon a finding by the governing body that the services are being performed in an effective and efficient manner; b. No contract shall be extended so that it runs for more than a total of five consecutive years; c. Any price change included as part of an extension shall be based upon the price of the original contract as cumulatively adjusted pursuant to any previous adjustment or extension and shall not exceed the change in the index rate for the 12 months preceding the most recent quarterly calculation available at the time the contract is renewed; and d. The terms and conditions of the contract remain substantially the same.

All multiyear leases and contracts entered into pursuant to this section, including any two-year or one-year extensions, except contracts involving the supplying of electricity for the purpose of lighting public streets and contracts for thermal energy authorized pursuant to subsection (1) above, construction contracts authorized pursuant to subsection (9) above, contracts for the provision or performance of goods or services or the supplying of equipment to promote energy conservation through the production of class I renewable energy or class II renewable energy authorized pursuant to subsection (45) above, contracts for water supply services or for a water supply facility, or any component part or parts thereof authorized pursuant to subsection (16), (30), (31), (34), (35), (37), or (43) above, contracts for resource recovery services or a resource recovery facility authorized pursuant to subsection (17) above, contracts for the sale of energy produced by a resource recovery facility authorized pursuant to subsection (18) above, contracts for wastewater treatment services or for a wastewater treatment system or any component part or parts thereof authorized pursuant to subsection (19), (36), (37), or (43) above, and contracts for the purchase of electricity or administrative or dispatching services related to the transmission of electricity authorized pursuant to subsection (24) above, contracts for the purchase of electricity generated from a power production facility that is fueled by methane gas authorized pursuant to subsection (44) above, and power supply contracts authorized pursuant to subsection (46) respectively, shall contain a clause making them subject to the availability and appropriation annually of sufficient funds as may be required to meet the extended obligation, or contain an annual cancellation clause.

The Division of Local Government Services in the Department of Community Affairs shall adopt and promulgate rules and regulations concerning the methods of accounting for all contracts that do not coincide with the fiscal year.

All contracts shall cease to have effect at the end of the contracted period and shall not be extended by any mechanism or provision, unless in conformance with the "Local Public Contracts Law," P.L.1971, c.198 (C.40A:11-1 et seq.), except that a contract may be extended by mutual agreement of the parties to the contract when a contracting unit has commenced rebidding prior to the time the contract expires or when the awarding of a contract is pending at the time the contract expires.

(cf: P.L.2016, c.55, s.10)]¹

¹22. (New section) a. Subject to the provisions of section 19 of P.L. , c. (C. ) (pending before the Legislature as this bill), nothing in P.L. , c. (C. ) (pending before the Legislature as this bill) shall be construed to permit a private entity or a governmental entity to engage in the provision of public utility distribution or transmission service, or to attach or collocate on, without the explicit, written approval of the public utility, a public utility facility, including, but not limited to, a public utility distribution and transmission system, and other support facilities that are owned or controlled by a public utility. A private entity or government entity may petition the board for resolution of a dispute arising from a public utility's denial of the request of the private entity or government entity for interconnection or to utilize facilities owned or controlled by the public utility.

b. Subject to the provisions of section 19 of P.L. , c. (C. ) (pending before the Legislature as this bill), a microgrid shall not engage in the provision of electric distribution service or natural gas distribution service for public use pursuant to R.S. 48:2-13, or in violation of a franchise granted to an electric public utility or natural gas public utility pursuant to R.S.48:2-14.¹

¹23. (New section) The authority shall, within three years after the effective date of P.L. , c. (C. ) (pending before the Legislature as this bill), and annually thereafter, prepare a report to the Governor and, pursuant to section 2 of P.L.1991, c.164 (C.52:14-19.1), to the Legislature regarding the number, nature, structure, and scope of energy-related public private partnership agreements developed pursuant to P.L. , c. (C. ) (pending before the Legislature as this bill), including: (1) a description of the improvements made to the energy infrastructure of participating governmental entities; (2) environmental impacts; (3) job creation and other economic and societal benefits; (4) costs incurred; and (5) where applicable, reductions in energy usage and demand and enhancements to the resiliency and reliability of the State's energy infrastructure. The report shall also address any implementation issues, including authority staffing and resource requirements, and set forth recommendations regarding how the processes and methods adopted to foster the development of energy-related public private partnership agreements under P.L. , c. (C. ) (pending before the Legislature as this bill) may be improved, expanded, or made more efficient.¹

¹24. Section 15 of P.L.1971, c.198 (C.40A:11-15) is amended to read as follows:

(1) Supplying of:

(a) (Deleted by amendment, P.L.1996, c.113.)

(b) (Deleted by amendment, P.L.1996, c.113.)

(2) (Deleted by amendment, P.L.1977, c.53.)

(5) Data processing service, for any term of not more than seven years;

(8) The supplying of any product or the rendering of any service by a company providing voice, data, transmission, or switching services for a term not exceeding five years;

(10) The providing of food services for any term not exceeding three years;

(12) (Deleted by amendment, P.L.2009, c.4.)[.]

(13) (Deleted by amendment, P.L.1999, c.440.)

(14) (Deleted by amendment, P.L.1999, c.440.)

(16) The provision of water supply services or the designing, financing, construction, operation, or maintenance, or any combination thereof, of a water supply facility, or any component part or parts thereof, including a water filtration system, for a period not to exceed 40 years, when the contract for these services is approved by the Division of Local Government Services in the Department of Community Affairs, the Board of Public Utilities, and the Department of Environmental Protection pursuant to P.L.1985, c.37 (C.58:26-1 et al.), except that no approvals shall be required for those contracts otherwise exempted pursuant to subsection (30), (31), (34), (35) or (43) of this section. For the purposes of this subsection, "water supply services" means any service provided by a water supply facility; "water filtration system" means any equipment, plants, structures, machinery, apparatus, or land, or any combination thereof, acquired, used, constructed, rehabilitated, or operated for the collection, impoundment, storage, improvement, filtration, or other treatment of drinking water for the purposes of purifying and enhancing water quality and insuring its potability prior to the distribution of the drinking water to the general public for human consumption, including plants and works, and other personal property and appurtenances necessary for their use or operation; and "water supply facility" means and refers to the real property and the plants, structures, or interconnections between existing water supply facilities, machinery and equipment and other property, real, personal, and mixed, acquired, constructed, or operated, or to be acquired, constructed, or operated, in whole or in part by or on behalf of a political subdivision of the State or any agency thereof, for the purpose of augmenting the natural water resources of the State and making available an increased supply of water for all uses, or of conserving existing water resources, and any and all appurtenances necessary, useful, or convenient for the collecting, impounding, storing, improving, treating, filtering, conserving, or transmitting of water and for the preservation and protection of these resources and facilities and providing for the conservation and development of future water supply resources;

(20) The supplying of goods or services for the purpose of lighting public streets, for a term not to exceed five years;

(21) The provision of emergency medical services for a term not to exceed five years;

(22) Towing and storage contracts, awarded pursuant to paragraph u. of subsection (1) of section 5 of P.L.1971, c.198 (C.40A:11-5) for any term not exceeding three years;

(23) Fuel for the purpose of generating electricity for a term not to exceed eight years;

(26) (Deleted by amendment, P.L.1999, c.440.)

(29) The performance of patient care services by contracted medical staff at county hospitals, correction facilities, and long term care facilities, for any term of not more than three years;

(32) Laundry service and the rental, supply, and cleaning of uniforms for any term of not more than three years;

(37) The operation and management of a facility under a license issued or permit approved by the Department of Environmental Protection, including a wastewater treatment system, a stormwater management system, or a water supply or distribution facility, as the case may be, for any term of not more than ten years. For the purposes of this subsection, "wastewater treatment system" refers to facilities operated or maintained for the storage, collection, reduction, disposal, or other treatment of wastewater or sewage sludge, remediation of groundwater contamination, stormwater runoff, or the final disposal of residues resulting from the treatment of wastewater; "stormwater management system" means the same as that term is defined in section 3 of P.L.2019, c.42 (C.40A:26B-3); and "water supply or distribution facility" refers to facilities operated or maintained for augmenting the natural water resources of the State, increasing the supply of water, conserving existing water resources, or distributing water to users;

(38) Municipal solid waste collection from facilities owned by a contracting unit, for any term of not more than three years;

(39) Fuel for heating purposes, for any term of not more than three years;

(40) Fuel or oil for use in motor vehicles for any term of not more than three years;

(41) Plowing and removal of snow and ice for any term of not more than three years;

All multiyear leases and contracts entered into pursuant to this section, including any two-year or one-year extensions, except contracts involving the supplying of electricity for the purpose of lighting public streets and contracts for thermal energy authorized pursuant to subsection (1) above, construction contracts authorized pursuant to subsection (9) above, contracts for the provision or performance of goods or services or the supplying of equipment to promote energy conservation through the production of class I renewable energy or class II renewable energy authorized pursuant to subsection (45) above, contracts for water supply services or for a water supply facility, or any component part or parts thereof authorized pursuant to subsection (16), (30), (31), (34), (35), (37), or (43) above, contracts for resource recovery services or a resource recovery facility authorized pursuant to subsection (17) above, contracts for the sale of energy produced by a resource recovery facility authorized pursuant to subsection (18) above, contracts for wastewater treatment services or for a wastewater treatment system or any component part or parts thereof authorized pursuant to subsection (19), (36), (37), or (43) above, contracts for the operation and maintenance of a stormwater management system authorized pursuant to subsection (37) above, and contracts for the purchase of electricity or administrative or dispatching services related to the transmission of electricity authorized pursuant to subsection (24) above, contracts for the purchase of electricity generated from a power production facility that is fueled by methane gas authorized pursuant to subsection (44) above, and power supply contracts authorized pursuant to subsection (46) respectively, shall contain a clause making them subject to the availability and appropriation annually of sufficient funds as may be required to meet the extended obligation, or contain an annual cancellation clause.

(cf: P.L.2019, c.42, s.22)

¹[22.] 25.¹N.J.S.18A:18A-42 is amended to read as follows:

18A:18A-42. All contracts for the provision or performance of goods or services shall be awarded for a period not to exceed 24 consecutive months, except that contracts for professional services pursuant to paragraph (1) of subsection a. of N.J.S.18A:18A-5 shall be awarded for a period not to exceed 12 consecutive months. Any board of education may award a contract for longer periods of time as follows:

a. Supplying of:

(1) Fuel for heating purposes, for any term not exceeding in the aggregate, three years;

(2) Fuel or oil for use of automobiles, autobuses, motor vehicles or equipment, for any term not exceeding in the aggregate, three years;

(3) Thermal energy produced by a cogeneration facility, for use for heating or air conditioning or both, for any term not exceeding 40 years, when the contract is approved by the Board of Public Utilities. For the purposes of this paragraph, "cogeneration" means the simultaneous production in one facility of electric power and other forms of useful energy such as heating or process steam; or

b. Plowing and removal of snow and ice, for any term not exceeding in the aggregate, three years; or

c. Collection and disposal of garbage and refuse, for any term not exceeding in the aggregate, three years; or

d. Data processing service, for any term of not more than seven years; or

e. Insurance, including the purchase of insurance coverages, insurance consultant or administrative services, and including participation in a joint self-insurance fund, risk management program or related services provided by a school board insurance group, or participation in an insurance fund established by a county pursuant to N.J.S.40A:10-6, or a joint insurance fund established pursuant to P.L.1983, c.372 (C.40A:10-36 et seq.), for any term of not more than three years; or

f. Leasing or servicing of automobiles, motor vehicles, electronic communications equipment, machinery and equipment of every nature and kind and textbooks and non-consumable instructional materials, for any term not exceeding in the aggregate, five years; except that contracts for the leasing of school buses may be awarded for any term not exceeding in the aggregate ten years. Contracts awarded pursuant to this subsection shall be awarded only subject to and in accordance with rules and regulations promulgated by the State Board of Education; or

g. Supplying of any product or the rendering of any service by a company providing voice, data, transmission or switching services, for a term not exceeding five years; or

h. (Deleted by amendment, P.L.1999, c.440.)

i. Driver education instruction conducted by private, licensed driver education schools, for any term not exceeding in the aggregate, three years; or

j. (Deleted by amendment, P.L.2009, c.4.)[.]

k. Any single project for the construction, reconstruction or rehabilitation of any public building, structure or facility, or any public works project, including the retention of the services of any architect or engineer in connection therewith, for the length of time authorized and necessary for the completion of the actual construction; or

l. Laundry service and the rental, supply and cleaning of uniforms for any term of not more than three years; or

m. Food supplies and food services for any term of not more than three years; or

n. Purchases made under a contract awarded by the Director of the Division of Purchase and Property in the Department of the Treasury for use by counties, municipalities or other contracting units pursuant to section 3 of P.L.1969, c.104 (C.52:25-16.1), for a term not to exceed the term of that contract; or

o. The provision or performance of goods or services for the purpose of producing class I renewable energy, as that term is defined in section 3 of P.L.1999, c.23 (C.48:3-51), at, or adjacent to, buildings owned by any local board of education, the entire price of which is to be established as a percentage of the resultant savings in energy costs, for a term not to exceed 15 years; provided, however, that these contracts shall be entered into only subject to
and in accordance with guidelines promulgated by the Board of Public Utilities establishing a methodology for computing energy cost savings and energy generation costs.

p. The sale of electricity or thermal energy, or both, produced by a combined heat and power facility, cogeneration facility, or on-site generation facility, as those terms are defined pursuant to section 3 of P.L.1999, c.23 (C.48:3-51), a microgrid, as that term is defined in section 3 of P.L. , c. (C. ) (now pending before the Legislature as this bill), a district energy system, or a distributed energy resource, for a period not to exceed 25 years, which period shall commence after construction of such facility has been completed and commercial operation of the facility has commenced.

Any contract for services other than professional services, the statutory length of which contract is for three years or less, may include provisions for no more than one two-year, or two one-year, extensions, subject to the following limitations: a. the contract shall be awarded by resolution of the board of education upon a finding by the board of education that the services are being performed in an effective and efficient manner; b. no such contract shall be extended so that it runs for more than a total of five consecutive years; c. any price change included as part of an extension shall be based upon the price of the original contract as cumulatively adjusted pursuant to any previous adjustment or extension and shall not exceed the change in the index rate for the 12 months preceding the most recent quarterly calculation available at the time the contract is renewed; and d. the terms and conditions of the contract remain substantially the same.

All multiyear leases and contracts entered into pursuant to this section, including any two-year or one-year extensions, except contracts for insurance coverages, insurance consultant or administrative services, participation or membership in a joint self-insurance fund, risk management programs or related services of a school board insurance group, participation in an insurance fund established by a county pursuant to N.J.S.40A:10-6 or contracts for thermal energy authorized pursuant to subsection a. above, and contracts for the provision or performance of goods or services to promote energy conservation through the production of class I renewable energy, authorized pursuant to subsection o. of this section, shall contain a clause making them subject to the availability and appropriation annually of sufficient funds as may be required to meet the extended obligation, or contain an annual cancellation clause. All contracts shall cease to have effect at the end of the contracted period and shall not be extended by any mechanism or provision, unless in conformance with the "Public School Contracts Law," N.J.S.18A:18A-1 et seq., except that a contract may be extended by mutual agreement of the parties to the contract when a board of education has commenced rebidding prior to the time the contract expires or when the awarding of a contract is pending at the time the contract expires.

(cf: P.L.2009, c.4, s.3)

¹[23.] 26.¹ This act shall take effect immediately.