New P3 Legislation Effective July 1

427 views
370 views

Published on

The new legislation in Florida affecting Public Private Partnerships became effective July 1, 2013.

0 Comments
0 Likes
Statistics
Notes
  • Be the first to comment

  • Be the first to like this

No Downloads
Views
Total views
427
On SlideShare
0
From Embeds
0
Number of Embeds
1
Actions
Shares
0
Downloads
17
Comments
0
Likes
0
Embeds 0
No embeds

No notes for slide

New P3 Legislation Effective July 1

  1. 1. NEW P3 LEGISLATIONNEW P3 LEGISLATION FEFPA CONFERENCEFEFPA CONFERENCE July 2013July 2013 Lee A. Weintraub, Esq.Lee A. Weintraub, Esq. Becker & Poliakoff, P.A.Becker & Poliakoff, P.A. 3111 Stirling Road3111 Stirling Road Ft. Lauderdale, FL 33311Ft. Lauderdale, FL 33311 954-985-4147954-985-4147 lweintraub@becker-poliakoff.comlweintraub@becker-poliakoff.com
  2. 2. Section 287.05712 applies to any facility or projectSection 287.05712 applies to any facility or project serving a public purposeserving a public purpose  ““Qualifying Project” includes educational facilities or otherQualifying Project” includes educational facilities or other buildings used or to be used by public educational institutionbuildings used or to be used by public educational institution It applies to counties, municipalities, school boards, anyIt applies to counties, municipalities, school boards, any other political subdivision of the state, and any publicother political subdivision of the state, and any public body, corporate and politicbody, corporate and politic Legislative findingsLegislative findings::  Need for development & maintenance of educational facilities,Need for development & maintenance of educational facilities, not wholly satisfied by existing procurement methodsnot wholly satisfied by existing procurement methods  Inadequate resources to develop new educational facilities,Inadequate resources to develop new educational facilities, which P3 can resolvewhich P3 can resolve
  3. 3. Establishes the Partnership for Public Facilities and InfrastructureEstablishes the Partnership for Public Facilities and Infrastructure Act Guidelines Task ForceAct Guidelines Task Force  Task force will recommend guidelines for the legislature to consider toTask force will recommend guidelines for the legislature to consider to create a uniform process for establishing P3’screate a uniform process for establishing P3’s  Including factors public entities should consider when processingIncluding factors public entities should consider when processing requestsrequests Task force will begin meeting by August 31, 2013 to establishTask force will begin meeting by August 31, 2013 to establish procedures for the conduct of its businessprocedures for the conduct of its business No more than two task force meetings may be held for the purposeNo more than two task force meetings may be held for the purpose of taking public testimonyof taking public testimony Task force must submit final recommendations to governor andTask force must submit final recommendations to governor and legislature by July 1, 2014legislature by July 1, 2014
  4. 4. Formal establishment or adoption ofFormal establishment or adoption of guidelines by public entity is not requiredguidelines by public entity is not required for entity to request or receive P3for entity to request or receive P3 proposalsproposals  Public entity may adopt its own guidelinesPublic entity may adopt its own guidelines provided they are consistent with this statuteprovided they are consistent with this statute
  5. 5. Procurement ProceduresProcurement Procedures Public entity may receive unsolicited proposalsPublic entity may receive unsolicited proposals or may solicit proposals through traditionalor may solicit proposals through traditional procurement methodsprocurement methods Public entity may establish a reasonablePublic entity may establish a reasonable application fee for unsolicited proposalsapplication fee for unsolicited proposals  Fee must be sufficient to pay costs of evaluating theFee must be sufficient to pay costs of evaluating the proposalproposal  Public entity may hire private consultants to assist inPublic entity may hire private consultants to assist in the evaluation, paid for by private entitythe evaluation, paid for by private entity
  6. 6. Procurement ProceduresProcurement Procedures If the public entity intends to enter into aIf the public entity intends to enter into a comprehensive agreement, it must publishcomprehensive agreement, it must publish notice in the Florida Administrativenotice in the Florida Administrative Register and newspaper of generalRegister and newspaper of general circulation at least once a week for twocirculation at least once a week for two weeksweeks
  7. 7. Procurement ProceduresProcurement Procedures Notice must provide that the public entity has received aNotice must provide that the public entity has received a proposal and will accept other proposals for the sameproposal and will accept other proposals for the same projectproject Time frame for accepting other proposals shall beTime frame for accepting other proposals shall be determined by public entity on project by project basisdetermined by public entity on project by project basis  Based upon complexity of the project and the public benefit to beBased upon complexity of the project and the public benefit to be gained by allowing a longer or shorter period of time forgained by allowing a longer or shorter period of time for competing proposalscompeting proposals  Time frame must be at least 21 days, but no more than 120Time frame must be at least 21 days, but no more than 120 days, after initial date of publicationdays, after initial date of publication Copy of the notice must be mailed to each localCopy of the notice must be mailed to each local government in affected areagovernment in affected area
  8. 8. Procurement ProceduresProcurement Procedures Public entity is authorized to approve projectPublic entity is authorized to approve project if:if:  Project is in public’s best interestProject is in public’s best interest  Facility is owned by public entity or ownership will be conveyedFacility is owned by public entity or ownership will be conveyed to public entityto public entity  Adequate safeguards in place to ensure additional costs orAdequate safeguards in place to ensure additional costs or service disruptions are not imposed on public if material defaultservice disruptions are not imposed on public if material default or cancellation of agreementor cancellation of agreement  Adequate safeguards in place to ensure capacity may be addedAdequate safeguards in place to ensure capacity may be added if desiredif desired  Estimated cost is reasonable in relation to similar facilitiesEstimated cost is reasonable in relation to similar facilities
  9. 9. Project Approval RequirementsProject Approval Requirements Unsolicited proposal must be accompanied byUnsolicited proposal must be accompanied by following items, unless waived by public entity:following items, unless waived by public entity:  Conceptual design of facility and schedule forConceptual design of facility and schedule for constructionconstruction  Description of method by which private entityDescription of method by which private entity proposes to secure necessary property interestsproposes to secure necessary property interests  Description of private entity’s general plans forDescription of private entity’s general plans for financing projectfinancing project Includes sources of private entity’s funds and identity of anyIncludes sources of private entity’s funds and identity of any dedicated revenue source or proposed debt or equitydedicated revenue source or proposed debt or equity investment on behalf of private entityinvestment on behalf of private entity
  10. 10. CONTENTS OF UNSOLICITEDCONTENTS OF UNSOLICITED PROPOSAL (CON’T)PROPOSAL (CON’T)  Proposed user fees, lease payments or otherProposed user fees, lease payments or other service payments over term of agreementservice payments over term of agreement Including methodology for and circumstances thatIncluding methodology for and circumstances that would allow changes to user feeswould allow changes to user fees
  11. 11. Project Qualification and ProcessProject Qualification and Process After competitive bidding period has expired,After competitive bidding period has expired, public entity ranks proposals received in order ofpublic entity ranks proposals received in order of preferencepreference  Public entity may consider professional qualifications,Public entity may consider professional qualifications, general business terms, innovative designgeneral business terms, innovative design techniques, cost reduction terms, and finance planstechniques, cost reduction terms, and finance plans  Private entity must meet minimum standardsPrivate entity must meet minimum standards contained in public entity’s guidelines for qualifyingcontained in public entity’s guidelines for qualifying professional services & contracts for traditionalprofessional services & contracts for traditional procurement projectsprocurement projects
  12. 12. Project Qualification and ProcessProject Qualification and Process Public entity may then begin negotiatingPublic entity may then begin negotiating with highest ranked firmwith highest ranked firm  If pubic entity is not satisfied with results ofIf pubic entity is not satisfied with results of negotiations, public entity may terminatenegotiations, public entity may terminate negotiations and begin negotiating withnegotiations and begin negotiating with second ranked firmsecond ranked firm  Public entity may reject all proposals at anyPublic entity may reject all proposals at any point in processpoint in process
  13. 13. Project Qualification and ProcessProject Qualification and Process Public entity shall perform independentPublic entity shall perform independent analysis of proposed P3 to demonstrateanalysis of proposed P3 to demonstrate cost-effectiveness & overall public benefitcost-effectiveness & overall public benefit before initiating procurement process orbefore initiating procurement process or awarding contractawarding contract
  14. 14. Notice to Affected LocalNotice to Affected Local JurisdictionsJurisdictions Public entity must furnish copy of proposal to eachPublic entity must furnish copy of proposal to each affected local jurisdictionaffected local jurisdiction Each affected local jurisdiction has 60 days from receiptEach affected local jurisdiction has 60 days from receipt of notice to submit written comments indicating whetherof notice to submit written comments indicating whether proposed facility is incompatible with local jurisdiction’sproposed facility is incompatible with local jurisdiction’s plansplans If affected local jurisdiction fails to respond within 60If affected local jurisdiction fails to respond within 60 days, non-response is deemed acknowledgement thatdays, non-response is deemed acknowledgement that project is compatibleproject is compatible
  15. 15. Interim AgreementInterim Agreement May be entered into before or in connection withMay be entered into before or in connection with negotiation for comprehensive agreementnegotiation for comprehensive agreement Interim agreement does not obligate public entity to enterInterim agreement does not obligate public entity to enter into comprehensive agreementinto comprehensive agreement Interim agreement is discretionaryInterim agreement is discretionary Parties may proceed directly to comprehensive agreementParties may proceed directly to comprehensive agreement
  16. 16. Interim AgreementInterim Agreement Interim Agreement must be limited to provisionsInterim Agreement must be limited to provisions that authorize private entity to commencethat authorize private entity to commence activities for which it may be compensatedactivities for which it may be compensated related to the projectrelated to the project Including project planning and development, design,Including project planning and development, design, environmental analysis & mitigation, survey, ascertainingenvironmental analysis & mitigation, survey, ascertaining availability of financingavailability of financing Establish process & timing for negotiation of comprehensiveEstablish process & timing for negotiation of comprehensive agreementagreement Such other provisions the parties deem appropriateSuch other provisions the parties deem appropriate
  17. 17. Comprehensive AgreementComprehensive Agreement MustMust provide for:provide for:  Payment and performance bondsPayment and performance bonds  Public entity’s review and approval of project designPublic entity’s review and approval of project design Does not require private entity to complete the design beforeDoes not require private entity to complete the design before executing comprehensive agreementexecuting comprehensive agreement  Public entity’s inspection of construction activitiesPublic entity’s inspection of construction activities  Public liability insurance requirementsPublic liability insurance requirements  Public entity’s monitoring of maintenance practices byPublic entity’s monitoring of maintenance practices by private entityprivate entity
  18. 18. Comprehensive AgreementComprehensive Agreement  Periodic financial reporting by private entity pertainingPeriodic financial reporting by private entity pertaining to projectto project  Fees, lease payments, or service paymentsFees, lease payments, or service payments  Rights and responsibilities of parties during course ofRights and responsibilities of parties during course of construction and operationsconstruction and operations Including provisions for termination of agreement & rightsIncluding provisions for termination of agreement & rights and responsibilities upon default by private entityand responsibilities upon default by private entity – Must provide for circumstances whereby defaulting privateMust provide for circumstances whereby defaulting private entity’s responsibilities and interests may be assumed by eitherentity’s responsibilities and interests may be assumed by either entity participating in funding of project or public entityentity participating in funding of project or public entity
  19. 19. Comprehensive AgreementComprehensive Agreement MayMay include:include:  Agreement by public entity to make grants orAgreement by public entity to make grants or loans to private entity from amounts receivedloans to private entity from amounts received from federal, state or local government orfrom federal, state or local government or agenciesagencies  Notice of default and right to cure provisionsNotice of default and right to cure provisions
  20. 20. Comprehensive AgreementComprehensive Agreement Private entity will receive revenues fromPrivate entity will receive revenues from fee-generating uses of facility over life offee-generating uses of facility over life of agreementagreement  Pre-negotiated portion of same must bePre-negotiated portion of same must be returned to public entityreturned to public entity
  21. 21. FinancingFinancing Private entity may enter into private source financingPrivate entity may enter into private source financing agreement with financing sourcesagreement with financing sources  Financing agreement obligations and liens on property must beFinancing agreement obligations and liens on property must be paid in full before transfer of ownership or operation of facility topaid in full before transfer of ownership or operation of facility to public entitypublic entity Public entity may provide its own capital or operatingPublic entity may provide its own capital or operating budget to support projectbudget to support project  Budget must be from any legally permissible funding source ofBudget must be from any legally permissible funding source of public entitypublic entity  Financing agreement may not require public entity to indemnifyFinancing agreement may not require public entity to indemnify financing source, subject public entity’s facility to liens, or pledgefinancing source, subject public entity’s facility to liens, or pledge security interestsecurity interest Any such provision in financing agreement is void as matterAny such provision in financing agreement is void as matter of lawof law
  22. 22. FinancingFinancing Public entity shall appropriate contractualPublic entity shall appropriate contractual payment obligation, if required bypayment obligation, if required by comprehensive agreement, on prioritycomprehensive agreement, on priority basisbasis  Payment obligation must be appropriatedPayment obligation must be appropriated before other non-contractual obligationsbefore other non-contractual obligations payable from same enterprise or governmentpayable from same enterprise or government fundfund
  23. 23. Expiration or Termination ofExpiration or Termination of AgreementsAgreements If private entity materially defaults, compensationIf private entity materially defaults, compensation otherwise due to private entity would be payableotherwise due to private entity would be payable to investors & lenders on job as provided in anyto investors & lenders on job as provided in any operative agreementoperative agreement  Provided costs of operating and maintaining facility are paid inProvided costs of operating and maintaining facility are paid in the normal coursethe normal course  Public entity’s assumption of development or operation of projectPublic entity’s assumption of development or operation of project does not obligate it to pay any obligation of private entity fromdoes not obligate it to pay any obligation of private entity from sources other than revenues from the project unless statedsources other than revenues from the project unless stated otherwise in comprehensive agreementotherwise in comprehensive agreement
  24. 24. Sovereign immunity is not waivedSovereign immunity is not waived Doesn’t waive any requirement of s.Doesn’t waive any requirement of s. 287.055287.055 This act took effect July 1, 2013This act took effect July 1, 2013

×