54-EAU-06010105 French Broad Mitigation.pdf

STATE OF NORTH CAROLINA

North Carolina Department of Transportation

Request for Proposal #: 54-EAU-06010105

NCDOT RFP FOR PURCHASE OF PRIVATE MITIGATION

BANK CREDITS

French Broad, 06010105 hydrologic unit

Date of Issue: April 29,2024

Proposals Due: August 23, 2024 12:00 PM EST

Direct all inquiries/comments concerning this RFP to:

Project Contact:

LeiLani Y. Paugh NCDOT/Environmental Analysis Unit 1000 Birch Ridge Drive Raleigh, NC 27610 lypaugh@ncdot.gov

1. PURPOSE

The North Carolina Department of Transportation (NCDOT) intends to purchase mitigation credits required for compensatory mitigation needs of transportation projects from approved sites after credit release by U.S

Army Corp of Engineers, Wilmington District, Regulatory Division (USACE). However, this Request for Proposals is soliciting both released credits and/or credits anticipated to be released at a later date. NCDOT is accepting sealed proposals for the following mitigation credits:

Credit Request:

Type: Stream Credit Amount: 60,000 cool stream credits

TIP Project(s): Various

River Basin: French Broad

8 digit hydrologic unit: 06010105

Proposers are cautioned that this is a Request for Proposals, not a request to contract, and the NCDOT reserves the unqualified right to reject any and all Proposals when such rejection is deemed by NCDOT to be in the best interest of the State of North Carolina.

The NCDOT reserves the right to use this procurement to fulfill the amount of the credit request cited in this

Section 1, in full or in part.

Throughout this Request for Proposals, the terms “bidder”, “offeror”, “vendor”, “banker”, “contractor”, and

“proposer” are considered synonymous.

“Released credits” refers to mitigation credits that have been approved and released by the U.S. Army Corp.

of Engineers (“USACE”), Wilmington District, Regulatory Division by the Proposal Due Date denoted in

Section 2 of this Request for Proposal.

“Successful Proposer(s)” refers to those proposers who offered the best value credits in response to this

Request for Proposal, and with whom NCDOT intends to enter into a Mitigation Credit Purchase

Agreement.

“Unreleased credits” refer to mitigation credits that have not been approved and released by the U.S. Army

Corp. of Engineers, Wilmington District, Regulatory Division by the Proposal Due Date denoted in Section 2 of this Request for Proposal, but are anticipated to be approved and released prior to the credit purchase schedule identified in Section 5 below. For the purposes of this RFP, Unreleased Credits are further differentiated into categories by status of an approved MBI.

“Best Value Credits” refers to those credits (or series of credits) with the lowest Adjusted Unit Price per

Credit. If the lowest Adjusted Unit Price Credits are exhausted, then best value credits also refer to those credits (or series of credits) with the next lowest Adjusted Unit Price per Credit, and so forth until the credit amount requested in Section 1 is fulfilled.

“Adjusted Unit Price per Credit” refers to the Unit Price per credit from Exhibit A adjusted based on credit status and maturity to determine the best value credits as outline in Section 8, Step 3 of this RFP.

2. PROCUREMENT TIMELINE

Request for Proposals Issuance:

Question/Comment Period Ends:

Proposals Due:

Announcement of Successful Proposer(s):

April 29, 2024

May 30, 2024

August 23, 2024

September 9, 2024

3. SUBMITTAL REQUIREMENTS

One original digital and one hard copy of the Proposal, contained in a sealed envelope, must be submitted to the Project Contact by the Proposal Due Date and Time.

The Project name (Proposal for Mitigation Credits, French Broad, 06010105 hydrologic unit, North

Carolina) and Bidder’s name and address must be shown on the outside of the sealed envelope, addressed to and delivered by delivery service or by hand to the Project Contact. Please note that the

US Postal Service does not deliver to this physical address. No submittals will be accepted after the deadline. Submittals received after the designated time will be returned unopened. Faxed or emailed proposals will not be accepted. By submitting a response to the RFP, proposer acknowledges that the information is valid for a period of 180 days after the Proposal Due Date.

Project Contact: LeiLani Y. Paugh

NCDOT/Environmental Analysis Unit Century Center Building A 1000 Birch Ridge Drive Raleigh, NC 27610

4. QUESTIONS AND CLARIFICATIONS

Any questions concerning this Request for Proposals should be submitted by email with a Subject line of “Proposal for Mitigation Credits, French Broad 06010105 hydrologic unit” to the Project Contact by the Question/Comment Period End Date and Time. All clarifications and any supplemental instructions will be posted on the NCDOT website at the following address:

https://connect.ncdot.gov/resources/Environmental/EAU/Mitigation-Modeling/Pages/default.aspx

5. CREDIT PURCHASE SCHEDULE

NCDOT intends to purchase 60,000 cool stream credits after released from mitigation bank(s) with an approved Mitigation Banking Instrument with Geographic Service Areas (GSAs) that include the

06010105 hydrologic unit, to offset unavoidable project impacts. The total number of credits must be available for purchase by January 31, 2033 to meet the current project schedules.

6. TECHNICAL REQUIREMENTS

The following minimum requirements must be adhered to by Proposers:

• For this RFP, NCDOT will only consider credits that have been released by the USACE from the approved banking instrument or are anticipated to be released prior to December

31, 2032.

• Proposers must be the owner, sponsor, or duly authorized agent of the owner, of the mitigation bank from which the proposed credits originate.

• Proposers will be responsible for all maintenance, stewardship, or other actions necessary to ensure compliance with the applicable mitigation banking instrument and associated environmental permits.

7. PROPOSAL

CONTENTS

A Proposer may submit multiple responses to this Request for Proposals; however, only one Mitigation

Bank may be included in each response to this Request for Proposals. Each proposal shall contain the following documents:

a. Exhibit A – Bid Schedule

b. Exhibit B ‐ Bidder Certification and Non‐Collusion Affidavit.

c. Service area for the mitigation bank from which credits are proposed described by the

River basin and 8 digit hydrologic unit.

d. For released credits, the site credit ledger indicating the current quantity and type of released credits available and the applicable USACE credit release letter.

e. For unreleased credits, the mitigation credit release schedule with quantities and type indicated along with the site approval date and (U)MBI approval date or anticipated dates and site prospectus.

Trade secrets or similar proprietary data which the Proposer does not wish disclosed to other than personnel involved in the evaluation or contract administration will be kept confidential to the extent permitted by N.C.A.C. § 5B.1501 and G.S. § 132‐1.2 if identified as follows: Each page shall be identified in boldface at the top and bottom as "CONFIDENTIAL". Any section of the proposal which is to remain confidential shall also be so marked in boldface on the title page of that section. Cost information may not be deemed confidential. In spite of what is labeled as confidential, the determination as to whether or not it is shall be determined by North Carolina law.

8. PROPOSAL EVALUATION AND DETERMINATION OF BEST VALUE

PROPOSALS

The evaluation and determination of the successful proposers will be made by examining the best value of the credits offered across all proposals as outlined in this Section 8. The evaluation will be conducted by a

Technical Review Committee comprised of at least three NCDOT representatives. The evaluation process will consist of the following steps:

1. Examine proposals for clerical errors, missing information, etc.;

2. Determine the responsiveness of all proposals;

3. Determine the Adjusted Unit Price per Credit in all responsive proposals;

4. Examine the Adjusted Unit Price per Credit to determine the best value credits; and

5. Publish results of best value credits determination.

Step 1: NCDOT staff will review the proposals for completeness, missing information, apparent clerical errors, and other such technicalities.

If a proposer lists multiple banks in the same proposal, then the NCDOT reserves the right to notify the proposer of such error and provide the proposer up to three business days to re‐submit these bank sites as multiple responses to this Request for Proposals, provided the re‐submittals do not contain any new sites that differ from those presented in the first submittal.

The NCDOT reserves the right to (1) waive any technicalities or clerical errors in any Proposal; (2) notify the proposer of any such error in their proposal and provide the proposer up to three business days to re‐ submit their proposal to rectify the error; or (3) request further information or clarification in regards to any proposals.

In the event a re‐submission of a proposal occurs in accordance with the above NCDOT rights, the proposer will not be permitted to revise the Unit Price per Credit from those amounts presented in

Exhibit A of the original submission, unless such revision is required to correct the clerical error.

Step 2: The Technical Review Committee will review the proposals (and any revised information submitted pursuant to Step 1 above) for responsiveness to the Request for Proposals.

In order to be deemed responsive, a proposal must propose the type of credits requested, propose credits within the requested 8 digit hydrologic unit, propose the first credit release by December 31, 2026, and propose all credits offered to be available by December 31, 2032, as established in Section 5 of this

Request for Proposals; provided, however, that a proposal that is in non‐ conformance with the

Technical Requirements of Section 6 or does not contain all the information cited in Section 7 may be deemed non‐responsive in the discretion of NCDOT.

If a proposal is found non‐responsive, it will not be considered further.

Step 3: The Technical Review committee will evaluate all credits in all Proposals and determine the

Adjusted Unit Price per Credit for each credit. The NCDOT will make a best value determination based on the lowest Adjusted Unit Price per Credit. Each Unit Price per Credit contained in Exhibit A of each proposal will be adjusted in accordance with the criteria set forth herein. This Adjusted Unit Price per

Credit will solely be used in the determination of the best value credits and does not represent the purchase price.

The NCDOT will decide the best value credits regardless of the quantity of credits offered in a given proposal. If the quantity of credits offered in a successful proposal does not satisfy the quantity of credits solicited in this Request for Proposals, the NCDOT may also select the next best value credits from another proposal to further meet the quantity solicited herein and may extend the selection to as many of the next best value credits from other proposals as may be necessary to fully satisfy the quantity solicited

NCDOT will review all credits submitted in accordance with this Request for Proposals and make a determination of the best value credits based on the following evaluation criteria:

• Unit Price per Credit; and

• Credit Status and Maturity.

Unit Price per Credit: For both released credits and unreleased credits, the Unit Price per Credit from

Exhibit A will be used.

Credit Status and Maturity: Contracting for unreleased credits vis‐à‐vis released credits can create greater risk for the NCDOT project schedules. Furthermore, unreleased credits from a bank that does not have an approved Mitigation Banking Instrument (MBI) compounds that risk.

Approval of the MBI, increasing maturity of the bank, and an earlier release schedule serves to mitigate that risk. In recognition of these risks, points will be assigned to credits in accordance with the tables below. For this evaluation criterion, each point will convert to a 1% increase in the Unit

Price per Credit in the determination of the Adjusted Unit Price per Credit.

Credits offered from an approved site with an Approved Mitigation Banking Instrument by Proposal Due date

First Credit Release by Date

Adjustment August 23, 2024 0 points December 31, 2024 25 points December 31, 2025 50 points

▪ ▪ December 31, 2026

75 points

Credits offered from an unapproved site or without an Approved Mitigation Banking Instrument by Proposal Due date

First Credit Release by Date

Adjustment December 31, 2024 100 points December 31, 2025 125 points December 31, 2026 150 points

Step 4 : The Adjusted Unit Price per Credit for all credits will be examined to identify the credits that will represent the best value credits.

Step 5: The Unit Price per Credit of all proposers will be announced as part of the announcement of

Successful Proposers.

9. TERMS OF

AGREEMENT

Upon selection of Successful Proposer(s), NCDOT will enter into a formal binding contract with

Successful Proposer(s). Such Agreement shall identify mutually agreeable schedules for delivery and purchase of the credits meeting the parameters outlined in paragraphs above and will be in substantially similar format and content as that contained in Exhibit C to this Request for Proposals. To be clear, NCDOT will not remit payment for any credits until the credits have been approved by the USACE in the form of released credits according to the terms of the associated MBI. In the event a bidder proposed credits and is unable to deliver the credits for any reason in satisfaction of the Agreement, the bidder is entitled to no compensation.

If the Successful Proposer has indicated that the site from which the credits will be procured is part of an UMBI (“Umbrella Mitigation Banking Instrument”), then the Successful Proposer can use other sites under that UMBI to satisfy the Mitigation Credit Purchase Agreement, subject to the terms of the

UMBI.

For this Agreement, the State requires a contract performance bond in the amount equal to the total purchase price of all released and unreleased credits. All bonds shall be in conformance with

N.C.G.S. § 44A‐ 33 and submitted at the time of execution of this Agreement. The corporate surety furnishing the bond shall be authorized to do business in the State.

In lieu of a performance bond, NCDOT may, in its sole discretion and without challenge, allow a Banker to provide security in a form acceptable to NCDOT in an amount equal to the purchase price of all released and unreleased credits identified in Section 1 of Exhibit C, Mitigation Credit Purchase

Agreement. Examples of such security include an irrevocable letter of credit, corporate or parent company guaranty, audit of accounting records and/or other means to prove the financial stability of the Banker. If the agreed form of security is a letter of credit, or corporate or parent company guaranty, the security shall not be terminable by the guarantor during the term of this Agreement without the consent of NCDOT. The security may be terminated with consent of the NCDOT so long as a new security instrument acceptable to NCDOT is in place.

A performance bond or other approved security shall remain in place until the last transfer of liability form has been signed by the U.S. Army Corps of Engineers for the applicable NCDOT permit for which the mitigation credits are to apply. In the event the mitigation credits apply to multiple NCDOT permits, then

NCDOT, in its sole discretion, may consider partial release of a bond or security for the value of the mitigation credits included in a transfer of liability form signed by the U.S. Army Corps of Engineers for an applicable NCDOT permit.

Exhibit 'A', Bid Schedule

Stream Credits within French Broad River Basin, 06010105 Hydrologic Unit, North Carolina Bidders shall fill‐in all blank spaces for each item offered for sale within each category. If a Bidder desires to offer credits from more than one mitigation site, then Bidder must complete a separate

Proposal for each mitigation site.

Bank Name: _________________________________________________________________________

8-digit hydrologic unit: _________________________________________________________________

Contact Name: _______________________________________________________________________

Phone #:

Email:

Is this site part of an UMBI? (Yes or No):

Category 1:

Released Credits from an approved site with an approved Mitigation Banking Instrument as of the Proposal Due Date and offered for sale:

Number of credits offered: Unit price per credit ($ x.xx)

Category 2:

Unreleased Credits from an approved site with an approved Mitigation Banking Instrument as of the Proposal Due Date scheduled for future release and offered for sale (list by release date):

Scheduled Credit Release Date Number of credits offered Unit price per credit ($ x.xx) a.

b.

c.

d.

e.

f.

g.

Category 3:

Unreleased Credits without an approved Mitigation Banking Instrument as of the Proposal Due Date anticipated for future approval and offered for sale (list by anticipated release date with anticipated MBI approval date on first line):

Anticipated site approval date: Anticipated MBI approval date:

Anticipated Credit Release Date Number of credits offered Unit price per credit ($ x.xx) a.

b.

c.

d.

e.

f.

g.

Exhibit B

BIDDER CERTIFICATION AND NON‐COLLUSION AFFIDAVIT

(MUST BE COMPLETED AND RETURNED WITH BID)

STATE OF COUNTY OF

The “Bidder” submits this certification in connection with NCDOT’s Request for Proposal for Mitigation Credits, French Broad River Basin, 06010105 hydrologic unit, North Carolina

I (name)________________________, deposes and says that: He or She is (title) ___________________

(Bidder corporate name) _________________________________________________ and that:

I am a principal or other authorized representative of the firm of said Bidder firm, and that I am authorized by said firm to execute this certification and accompanying Bid on behalf of said firm.

(1) He or she is fully informed respecting the preparation and contents of the Bid for the project listed above and of all pertinent circumstances respecting such Bid; and

(2) Having carefully examined the Request for Proposals, and with submission of a bid, I am in full agreement with the terms, conditions, specifications and requirements therein; and will execute a binding agreement containing such terms and conditions; and

(3) Such Bid is genuine and neither the said Bidder nor any of its officers, partners, owners, agents, representatives, employees or parties in interest, including this Affiant, has in any way attempted to prevent competition with regard to submittal of the bid/proposal and the procurement of a contract for said Project; and

(4) Neither the said Bidder nor any of its officers, partners, owners, agents, representatives, employees or parties in interest, including this Affiant, has in any way colluded, conspired, or agreed, directly or indirectly with any other firm or person to submit a collusive or sham Bid in connection with said Project.

By:

(Printed Name)

(Signature)

Subscribed and Sworn to before me this day of , .

My Commission Expires:

(Notary Public)

(SEAL