April 1, 2019
appeal from Superior Court of New Jersey, Law Division,
Burlington County, Docket No. L-0787-18.
A. Rosen argued the cause for appellant (McElroy, Deutsch,
Mulvaney & Carpenter, LLP, attorneys; Mark A. Rosen, of
counsel and on the briefs).
Richard W. Hunt argued the cause for respondent (Parker McCay
PA, attorneys; Richard W. Hunt and John Neckonchuk, on the
Judges Messano, Fasciale and Rose.
Defendant Schneider Electric Buildings Americas, Inc.
(Schneider) appeals from a July 3, 2018 Law Division order
enjoining and dismissing arbitration proceedings filed
against plaintiff Medford Township School District
(District). We affirm.
dispute arises from the implementation of an energy savings
improvement program (ESIP), N.J.S.A. 18A:18A-4.6, under which
the District contracted with Schneider to design and
implement upgrades to several of the District's schools
and its transportation and operations center. Initially, the
parties executed the Performance Assurance Support Services
Agreement (PASS Agreement), requiring the District to monitor
the ESIP's actual energy savings and guaranteeing the
District a certain level of monetary savings. The PASS
Agreement did not contain an arbitration provision. Instead,
its governing law clause provided, in pertinent part
This PASS Agreement will be governed, interpreted and
construed by, under and in accordance with the laws, statutes
and decisions of the state in which the [s]ervices are to be
performed, without regard to its choice of law provisions.
Venue shall be in the federal, state or municipal courts
serving the county in which the [s]ervices are
the District issued a request for proposals (RFP), seeking a
qualified energy services company (ESC) to perform the
services of a general contractor for its ESIP. Among other
things, the RFP outlined the terms of the ESIP Agreement,
including development and implementation of an energy savings
plan. Paragraph 30 of the RFP contained a governing law
clause, which stated verbatim (emphasis added):
The ESIP Agreement shall be governed by the laws of the State
of New Jersey. The successful [ESC] shall agree that any
action or proceeding that arises in any manner out of
performance of the RFP or ESIP Agreement, shall be litigated
in the Superior Court of New Jersey, Burlington County, State
of New Jersey, and the [ESC] shall consent and submit to
the jurisdiction of the Superior Court.
Schneider was awarded the project, the parties executed the
Energy Services Construction Contract (ESCC). Under the terms
of the ESCC, the parties agreed that Schneider would be paid
$2, 494, 575 for performing energy conservation measures,
including lighting upgrades and building automation systems
throughout the District.
5 of the ESCC contained a dispute resolution provision, which
stated (emphasis added):
5.1 To the extent allowed by applicable law, any
controversy or claim arising out of or relating to this
[c]ontract, or [c]ontract [d]ocuments, or any breach thereof,
may be settled by binding arbitration in accordance with the
Construction Industry Arbitration Rules of the American
Arbitration Association [(AAA)], and judgment upon the