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| 4 | 4 | | |
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| 5 | 5 | | 2025 -- S 0826 |
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| 6 | 6 | | ======== |
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| 7 | 7 | | LC001601 |
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| 8 | 8 | | ======== |
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| 9 | 9 | | S T A T E O F R H O D E I S L A N D |
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| 10 | 10 | | IN GENERAL ASSEMBLY |
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| 11 | 11 | | JANUARY SESSION, A.D. 2025 |
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| 12 | 12 | | ____________ |
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| 13 | 13 | | |
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| 14 | 14 | | A N A C T |
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| 15 | 15 | | RELATING TO STATE AFFAIRS AND GOVERNMENT -- PUBLIC-PRIVATE |
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| 16 | 16 | | PARTNERSHIP INFRASTRUCTURE PROGRAM |
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| 17 | 17 | | Introduced By: Senators DiPalma, Gallo, Ciccone, Lawson, and Tikoian |
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| 18 | 18 | | Date Introduced: March 14, 2025 |
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| 19 | 19 | | Referred To: Senate Labor & Gaming |
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| 20 | 20 | | |
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| 21 | 21 | | |
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| 22 | 22 | | It is enacted by the General Assembly as follows: |
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| 23 | 23 | | SECTION 1. Title 42 of the General Laws entitled "STATE AFFAIRS AND 1 |
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| 24 | 24 | | GOVERNMENT" is hereby amended by adding thereto the following chapter: 2 |
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| 25 | 25 | | CHAPTER 13.2 3 |
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| 26 | 26 | | PUBLIC-PRIVATE PARTNERSHIP INFRASTRUCTURE PROGRAM 4 |
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| 27 | 27 | | 42-13.2-1. Short title. 5 |
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| 28 | 28 | | This chapter shall be known and may be cited as the "Public-Private Partnership 6 |
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| 29 | 29 | | Infrastructure Program." 7 |
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| 30 | 30 | | 42-13.2-2. Definitions. 8 |
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| 31 | 31 | | As used in this chapter, the following words shall have the following meanings, unless the 9 |
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| 32 | 32 | | context clearly requires otherwise: 10 |
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| 33 | 33 | | (1) "Affected jurisdiction" means any city or town, or other unit of government within the 11 |
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| 34 | 34 | | state in which all or part of a qualified facility is located or any other public entity directly affected 12 |
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| 35 | 35 | | by the qualified facility. 13 |
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| 36 | 36 | | (2) "Architectural and engineering services" means: 14 |
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| 37 | 37 | | (i) Professional services of an architectural or engineering nature, as defined by applicable 15 |
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| 38 | 38 | | state law, which are required to be performed or approved by a person licensed, registered or 16 |
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| 39 | 39 | | certified to provide such services as described in this definition; 17 |
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| 40 | 40 | | (ii) Professional services of an architectural or engineering nature performed by contract 18 |
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| 41 | 41 | | |
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| 42 | 42 | | |
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| 43 | 43 | | LC001601 - Page 2 of 14 |
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| 44 | 44 | | that are associated with research, planning, development, design, construction, alteration or repair 1 |
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| 45 | 45 | | of real property; and 2 |
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| 46 | 46 | | (iii) Such other professional services of an architectural or engineering nature or incidental 3 |
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| 47 | 47 | | services, which members of the architectural and engineering professions and employees thereof 4 |
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| 48 | 48 | | may logically or justifiably perform, including: studies, investigations, surveying, mapping, tests, 5 |
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| 49 | 49 | | evaluations, consultations, comprehensive planning, program management, conceptual designs, 6 |
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| 50 | 50 | | plans and specifications, value engineering, construction phase services, soils engineering, drawing 7 |
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| 51 | 51 | | reviews, preparation of operating and maintenance manuals and other related services. 8 |
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| 52 | 52 | | (3) "Construction" means the process of building, altering, repairing, improving or 9 |
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| 53 | 53 | | demolishing any qualified facility, including any structure, building or other improvements of any 10 |
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| 54 | 54 | | kind to real property. "Construction" shall not include the routine operation, routine repair or 11 |
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| 55 | 55 | | routine maintenance of any existing qualified facility, including structures, buildings or real 12 |
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| 56 | 56 | | property. 13 |
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| 57 | 57 | | (4) "Contract" means any agreement, including a public-private agreement for the 14 |
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| 58 | 58 | | procurement, operation or disposal under this chapter of a qualified facility by the department. 15 |
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| 59 | 59 | | (5) "Contract modification" means any written alteration in specifications, delivery point, 16 |
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| 60 | 60 | | rate of delivery, period of performance, price, quantity or other provisions of any contract 17 |
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| 61 | 61 | | accomplished by mutual action of the parties to the contract. 18 |
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| 62 | 62 | | (6) "Contractor" means any person having a contract with the department pursuant to the 19 |
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| 63 | 63 | | provisions of this chapter. 20 |
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| 64 | 64 | | (7) "Cooperative purchasing" means procurement conducted by, or on behalf of, an 21 |
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| 65 | 65 | | affected jurisdiction. 22 |
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| 66 | 66 | | (8) "Department" means any department of state government in accordance with § 42-6-1. 23 |
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| 67 | 67 | | (9) "Design-build-finance-operate-maintain" means a project delivery method in which the 24 |
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| 68 | 68 | | department enters into a single contract for design, construction, finance, maintenance and 25 |
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| 69 | 69 | | operation of a qualified facility over a contractually defined period. Any potential available 26 |
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| 70 | 70 | | payments to be appropriated by the state while services are being provided by the contractor during 27 |
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| 71 | 71 | | the contract period shall be identified in the request for proposals and contract. The financial 28 |
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| 72 | 72 | | amount and duration of such potential available payments, and the terms and conditions upon which 29 |
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| 73 | 73 | | they may be appropriated, shall be identified in the request for proposals and contract. 30 |
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| 74 | 74 | | (10) "Design-build-operate-maintain" means a project delivery method in which the 31 |
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| 75 | 75 | | department enters into a single contract for design, construction, maintenance and operation of a 32 |
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| 76 | 76 | | qualified facility over a contractually defined period and all or a portion of the funds required to 33 |
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| 77 | 77 | | pay for the services provided by the contractor during the contract period shall either be 34 |
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| 78 | 78 | | |
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| 79 | 79 | | |
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| 80 | 80 | | LC001601 - Page 3 of 14 |
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| 81 | 81 | | appropriated by the state or by the department prior to award of the contract or secured by the state 1 |
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| 82 | 82 | | or by the department through fare or user charges. 2 |
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| 83 | 83 | | (11) "Design requirements" means the written description of the qualified facility or service 3 |
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| 84 | 84 | | to be procured under this chapter including: 4 |
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| 85 | 85 | | (i) Required features, functions, characteristics, qualities and properties required by the 5 |
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| 86 | 86 | | department; 6 |
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| 87 | 87 | | (ii) The anticipated schedule, including start, duration and completion; and 7 |
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| 88 | 88 | | (iii) Estimated budgets as applicable to the specific procurement for design, construction, 8 |
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| 89 | 89 | | operation and maintenance; provided, however, that design requirements may include drawings 9 |
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| 90 | 90 | | and other documents illustrating the scale and relationship of the features, functions and 10 |
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| 91 | 91 | | characteristics of the project. 11 |
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| 92 | 92 | | (12) "Force majeure" means an uncontrollable force or natural disaster not within the power 12 |
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| 93 | 93 | | of the operator or the state. 13 |
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| 94 | 94 | | (13) "Independent peer reviewer services" means additional architectural and engineering 14 |
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| 95 | 95 | | services provided to the department in design-build-operatemaintain or design-build-finance-15 |
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| 96 | 96 | | operate-maintain procurements to confirm that the key elements of the professional engineering 16 |
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| 97 | 97 | | and architectural design provided by the contractor are in conformance with the applicable standard 17 |
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| 98 | 98 | | of care. 18 |
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| 99 | 99 | | (14) "Large-scale construction project" means a construction project subject to this chapter 19 |
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| 100 | 100 | | with a total projected cost value at or in excess of twenty-five million dollars ($25,000,000). 20 |
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| 101 | 101 | | (15) "Maintenance" means and includes routine operation, routine maintenance, routine 21 |
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| 102 | 102 | | repair, rehabilitation, capital maintenance, maintenance replacement and any other categories of 22 |
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| 103 | 103 | | maintenance that may be designated by the department. 23 |
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| 104 | 104 | | (16) "Material default" means failure of a contractor to perform any duties under a public-24 |
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| 105 | 105 | | private agreement which jeopardizes delivery of adequate service to the public which remains 25 |
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| 106 | 106 | | unsatisfied after a reasonable period of time and after the operator has received written notice from 26 |
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| 107 | 107 | | the department of the failure. 27 |
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| 108 | 108 | | (17) "Operate" means any action to operate, maintain, repair, rehabilitate, improve, equip 28 |
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| 109 | 109 | | or modify a qualified facility, including the design and construction of repairs, improvements or 29 |
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| 110 | 110 | | modifications to a qualified facility. 30 |
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| 111 | 111 | | (18) "Operator" means a private entity that has entered into a public-private agreement to 31 |
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| 112 | 112 | | provide design-build-finance-operate-maintain or designbuild-operate-maintain services under 32 |
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| 113 | 113 | | this chapter. 33 |
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| 114 | 114 | | (19) "Private entity" means a natural person, corporation, general partnership, limited 34 |
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| 115 | 115 | | |
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| 116 | 116 | | |
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| 117 | 117 | | LC001601 - Page 4 of 14 |
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| 118 | 118 | | liability company, limited partnership, joint venture, business trust, public benefit corporation, 1 |
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| 119 | 119 | | nonprofit entity or other business entity. 2 |
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| 120 | 120 | | (20) "Proposal development documents" means drawings and other design-related 3 |
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| 121 | 121 | | documents that are sufficient to fix and describe the size and character of a qualified facility as to 4 |
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| 122 | 122 | | architectural, structural, mechanical and electrical systems, materials and such other elements as 5 |
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| 123 | 123 | | may be appropriate to the applicable project delivery method. 6 |
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| 124 | 124 | | (21) "Public-private agreement" means the contract between a private entity/operator and 7 |
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| 125 | 125 | | the department that relates to the development, financing, maintenance or operation of a qualified 8 |
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| 126 | 126 | | facility subject to this chapter. 9 |
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| 127 | 127 | | (22) "Qualified facility" or "facility" means a public transportation facility, terminal 10 |
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| 128 | 128 | | facility, seaport facility, rail facility, intermodal facility or similar facility open to the public and 11 |
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| 129 | 129 | | used for the transportation of persons or goods, water supply facility, water treatment intake and 12 |
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| 130 | 130 | | distribution facility, waste water treatment and collection facility, waste treatment facility, higher 13 |
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| 131 | 131 | | educational facility, medical or nursing care facility, recreational facility, state agency supportive 14 |
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| 132 | 132 | | facility, or appurtenances or other property needed to operate such facility that is subject to a public-15 |
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| 133 | 133 | | private agreement. 16 |
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| 134 | 134 | | (23) "Request for proposals" means all documents, whether attached to or incorporated by 17 |
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| 135 | 135 | | reference, utilized for soliciting proposals for a qualified facility under this chapter. 18 |
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| 136 | 136 | | (24) "Responsible bidder" means a person who has the capability in all respects to fully 19 |
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| 137 | 137 | | perform the contract requirements, and the integrity and reliability to assure good faith 20 |
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| 138 | 138 | | performance. 21 |
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| 139 | 139 | | (25) "Responsive bidder" means a person who has submitted a bid which conforms in all 22 |
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| 140 | 140 | | material respects to the invitation for bids. 23 |
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| 141 | 141 | | (26) "User fees" means the rate, fee or other charges imposed by an operator or by the 24 |
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| 142 | 142 | | department for use of all or part of a qualified facility. 25 |
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| 143 | 143 | | (27) "Utility" means a privately, publicly or cooperatively owned line, facility or system 26 |
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| 144 | 144 | | for producing, transmitting or distributing communications, cable television, power, electricity, 27 |
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| 145 | 145 | | light, heat, gas, oil, crude products, water, steam, waste, storm water not connected with highway 28 |
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| 146 | 146 | | drainage, or any other similar commodity, including any fire or police signal system or street 29 |
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| 147 | 147 | | lighting system, which directly or indirectly serves the public. 30 |
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| 148 | 148 | | 42-13.2-3. Establishment of special public-private partnership infrastructure 31 |
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| 149 | 149 | | oversight commission. 32 |
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| 150 | 150 | | (a) There is hereby established a special public-private partnership infrastructure oversight 33 |
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| 151 | 151 | | commission to comment on and approve all requests for proposals for design-build-finance-34 |
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| 152 | 152 | | |
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| 153 | 153 | | |
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| 154 | 154 | | LC001601 - Page 5 of 14 |
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| 155 | 155 | | operate-maintain or design-build-operate-maintain services. 1 |
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| 156 | 156 | | (b) The commission shall have seven (7) members to be appointed by the governor for a 2 |
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| 157 | 157 | | term of two (2) years. One of whom shall be a representative from the Rhode Island Society of 3 |
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| 158 | 158 | | Professional Engineers and three (3) of whom shall reside in different geographic regions of the 4 |
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| 159 | 159 | | state, and one of whom shall be an expert in the field of transportation and one of whom shall be 5 |
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| 160 | 160 | | an expert in the field of public finance. Each member of the commission shall be an expert with 6 |
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| 161 | 161 | | experience in either the fields of transportation, law, construction, labor, engineering, real estate, 7 |
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| 162 | 162 | | public policy, public finance or management consulting. One of the members shall be appointed 8 |
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| 163 | 163 | | by the governor to serve as chairperson of the commission. The members appointed by the governor 9 |
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| 164 | 164 | | may be eligible for reappointment; provided, however, that no such member shall serve for more 10 |
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| 165 | 165 | | than three (3) terms. 11 |
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| 166 | 166 | | (c)(1) No member or employee of the general assembly or an employee of the executive 12 |
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| 167 | 167 | | branch shall be eligible for appointment to the commission for a period of two (2) years subsequent 13 |
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| 168 | 168 | | to leaving their office or employment with the general assembly or executive branch prior to their 14 |
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| 169 | 169 | | appointment. 15 |
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| 170 | 170 | | (2) In the event that the department director was employed by an organization that has 16 |
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| 171 | 171 | | business before the department, or any predecessor agency or authority, for a period of at least two 17 |
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| 172 | 172 | | (2) years prior to their appointment, the governor shall appoint an appropriate replacement from 18 |
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| 173 | 173 | | within the department to fulfill the duties of the department required by this chapter. 19 |
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| 174 | 174 | | (d) Whenever the department notifies the commission of its intent to issue a request for 20 |
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| 175 | 175 | | proposal for design-build-finance-operate-maintain or design-build-operate-maintain services, the 21 |
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| 176 | 176 | | department shall submit a draft of the request for proposal to the commission for its review and 22 |
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| 177 | 177 | | approval. Pursuant to § 42-13.2-4, no request for proposal shall be issued by the department for a 23 |
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| 178 | 178 | | public-private agreement for design-build-finance-operate-maintain or design-build-operate-24 |
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| 179 | 179 | | maintain services without the commission's written approval. The commission shall provide an 25 |
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| 180 | 180 | | initial written response to the request for proposal within fifteen (15) days, and shall request any 26 |
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| 181 | 181 | | information necessary to comply with subsection (e) of this section. 27 |
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| 182 | 182 | | (e) For each request for proposal for design-build-finance-operate-maintain or design-28 |
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| 183 | 183 | | build-operate-maintain services, the commission shall report on issues surrounding the request for 29 |
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| 184 | 184 | | proposal including, but not limited to: 30 |
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| 185 | 185 | | (1) The status of current employees; 31 |
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| 186 | 186 | | (2) The policy and regulatory structure for overseeing a privately-operated facility and on-32 |
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| 187 | 187 | | going legislative oversight; 33 |
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| 188 | 188 | | (3) Issues of taxation, profit-sharing and resolution of new revenue producing ideas; 34 |
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| 189 | 189 | | |
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| 190 | 190 | | |
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| 191 | 191 | | LC001601 - Page 6 of 14 |
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| 192 | 192 | | (4) Advertising and marketing; 1 |
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| 193 | 193 | | (5) Use of new technologies; 2 |
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| 194 | 194 | | (6) Lease terms and termination clauses; 3 |
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| 195 | 195 | | (7) Additional responsibilities by both the private infrastructure operator and the state 4 |
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| 196 | 196 | | during the lease period; 5 |
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| 197 | 197 | | (8) The financial valuation of the state facility; 6 |
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| 198 | 198 | | (9) Issues of public concern; and 7 |
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| 199 | 199 | | (10) The anticipated advantages of entering into the anticipated public-private agreement 8 |
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| 200 | 200 | | for design-build-finance-operate-maintain or design-build-operate-maintain services. 9 |
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| 201 | 201 | | (f) The report shall be delivered within thirty (30) days of the commission's approval of a 10 |
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| 202 | 202 | | request for proposal for design-build-finance-operate-maintain or design-build-operate-maintain 11 |
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| 203 | 203 | | services to the director of administration, the house and senate committees on finance, the speaker 12 |
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| 204 | 204 | | of the house and the senate president. 13 |
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| 205 | 205 | | (g) Any research, analysis or other staff support that the commission reasonably requires 14 |
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| 206 | 206 | | shall be provided by the department. 15 |
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| 207 | 207 | | 42-13.2-4. Issuance of contracts. 16 |
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| 208 | 208 | | (a) Notwithstanding any general or special law to the contrary, the director of the 17 |
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| 209 | 209 | | department, in conjunction with the special public-private partnership infrastructure oversight 18 |
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| 210 | 210 | | commission established in § 42-13.2-3, may solicit proposals and enter into contracts for design-19 |
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| 211 | 211 | | build-finance-operate-maintain or design-build-operate-maintain services with the responsible and 20 |
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| 212 | 212 | | responsive bidder submitting the proposal that is most advantageous to the department through the 21 |
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| 213 | 213 | | sale, lease, operation and maintenance of a facility within the state; provided, however, that the 22 |
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| 214 | 214 | | proposal shall be in full compliance with all applicable requirements of federal, state and local law, 23 |
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| 215 | 215 | | including chapters 13, 14.1 and 14.3 of title 37; and provided, further, that any/all proposals shall 24 |
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| 216 | 216 | | be in full compliance of chapter 2.3 of title 37, and provided, further, that any/all proposals shall 25 |
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| 217 | 217 | | be in full compliance of chapter 148 and 149 of title 42; and provided, further, that any such contract 26 |
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| 218 | 218 | | shall not be subject to the competitive bid requirements set forth in chapter 2 of title 37; and 27 |
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| 219 | 219 | | provided, further, that each such contract shall be awarded pursuant to chapter 13 of title 37. 28 |
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| 220 | 220 | | (b) In soliciting and selecting a private entity/operator with which to enter into a public-29 |
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| 221 | 221 | | private agreement for design-build-finance-operate-maintain or design-build-operate-maintain 30 |
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| 222 | 222 | | services, the department shall utilize the following competitive sealed proposals procurement 31 |
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| 223 | 223 | | approach: 32 |
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| 224 | 224 | | (1) Each request for proposals for design-build-operate-maintain and design-build-finance-33 |
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| 225 | 225 | | operate-maintain services; 34 |
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| 226 | 226 | | |
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| 227 | 227 | | |
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| 228 | 228 | | LC001601 - Page 7 of 14 |
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| 229 | 229 | | (i) Shall include design requirements, and shall provide notice that the contractor is 1 |
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| 230 | 230 | | required to comply with § 37-13-6, and that all contractors and subcontractors performing or 2 |
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| 231 | 231 | | assisting in work on the project worksite shall pay their laborers, mechanics, teamsters, other craft 3 |
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| 232 | 232 | | members and employees employed under the contract no less than the locally prevailing wage and 4 |
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| 233 | 233 | | benefits for corresponding work on similar projects in the state; 5 |
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| 234 | 234 | | (ii) Shall solicit proposal development documents; and 6 |
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| 235 | 235 | | (iii) May, if the department determines that the cost of preparing proposals is high, 7 |
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| 236 | 236 | | considering the size, estimated price and complexity of the procurement: 8 |
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| 237 | 237 | | (A) Prequalify responsible bidders by issuing a request for qualifications in advance of the 9 |
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| 238 | 238 | | request for proposals; and 10 |
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| 239 | 239 | | (B) Select a short list of responsible bidders prior to discussions and evaluations, if the 11 |
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| 240 | 240 | | number of proposals that will be short-listed is stated in the request for proposals and prompt public 12 |
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| 241 | 241 | | notice is provided to all bidders as to which proposals have been short-listed; or 13 |
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| 242 | 242 | | (C) Pay stipends to unsuccessful bidders; provided, however, that the amount of such 14 |
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| 243 | 243 | | stipends and the terms under which such stipends shall be paid shall be included in the request for 15 |
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| 244 | 244 | | proposals. 16 |
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| 245 | 245 | | (2) Adequate public notice of the request for proposals, posted and published on the 17 |
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| 246 | 246 | | department's website at least three (3) weeks prior to the deadline for submission of proposals, with 18 |
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| 247 | 247 | | an opportunity for public comment, shall be provided; 19 |
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| 248 | 248 | | (3) Proposals shall be opened so as to avoid disclosure of contents to competing bidders 20 |
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| 249 | 249 | | during the process of negotiation and a register of proposals shall be prepared by the department 21 |
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| 250 | 250 | | and shall be open for public inspection after contract award; 22 |
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| 251 | 251 | | (4) Proposals for large-scale construction projects shall include a project labor feasibility 23 |
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| 252 | 252 | | analysis conducted by the public department, prior to the issuance of a request for proposals, of 24 |
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| 253 | 253 | | whether: 25 |
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| 254 | 254 | | (i) The size and complexity of the project indicate that a project labor agreement (PLA) 26 |
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| 255 | 255 | | would achieve economy, efficiency, project stability and cost certainty; and 27 |
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| 256 | 256 | | (ii) The record demonstrates that an objective, reasoned study is completed using 28 |
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| 257 | 257 | | reviewable criteria in determining that the adoption of a project labor agreement helps to achieve 29 |
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| 258 | 258 | | these objectives; 30 |
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| 259 | 259 | | (5) Proposals for a public-private agreement for design-build-finance-operate-maintain or 31 |
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| 260 | 260 | | design-build-operate-maintain services, shall include a contractual commitment to honor existing 32 |
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| 261 | 261 | | and future collective bargaining agreements with a certified bargaining unit for maintenance work 33 |
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| 262 | 262 | | where applicable; 34 |
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| 263 | 263 | | |
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| 264 | 264 | | |
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| 265 | 265 | | LC001601 - Page 8 of 14 |
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| 266 | 266 | | (6)(i) The request for proposals shall state the relative importance of price and other factors 1 |
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| 267 | 267 | | and subfactors, if any. 2 |
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| 268 | 268 | | (ii) Each request for proposals for design-build-operate-maintain and design-build-finance-3 |
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| 269 | 269 | | operate-maintain: 4 |
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| 270 | 270 | | (A) Shall state the relative importance of: 5 |
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| 271 | 271 | | (I) Demonstrated compliance with the design requirements; 6 |
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| 272 | 272 | | (II) Bidder qualifications; 7 |
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| 273 | 273 | | (III) Financial capacity; 8 |
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| 274 | 274 | | (IV) Project schedule; 9 |
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| 275 | 275 | | (V) Elimination of existing public debt with respect to the facility; and 10 |
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| 276 | 276 | | (VI) Lowest user charges or price over the term of the design-build-operate-maintain and 11 |
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| 277 | 277 | | design-build-financeoperate-maintain contract. 12 |
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| 278 | 278 | | (B) Shall, if the contract price is estimated to exceed ten million dollars ($10,000,000) or 13 |
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| 279 | 279 | | if the contract period of operations and maintenance is five (5) years or longer, or if circumstances 14 |
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| 280 | 280 | | established by the department require each bidder to identify an independent peer reviewer whose 15 |
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| 281 | 281 | | competence and qualification to provide such services shall be an additional evaluation factor in 16 |
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| 282 | 282 | | the award of the contract; and 17 |
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| 283 | 283 | | (C) Shall not include, as an evaluation factor in the award of the contract, the amount, if 18 |
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| 284 | 284 | | any, paid by a contractor to the department for procurement using design-build-operate-maintain 19 |
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| 285 | 285 | | and design-build-finance-operate-maintain; 20 |
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| 286 | 286 | | (7) As provided in the request for proposals and under regulations issued by the department, 21 |
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| 287 | 287 | | discussions may be conducted with responsible bidders who submit proposals determined to be 22 |
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| 288 | 288 | | reasonably susceptible of being selected for award for the purpose of clarification to assure full 23 |
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| 289 | 289 | | understanding of, and responsiveness to, the solicitation requirements. Bidders shall be accorded 24 |
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| 290 | 290 | | fair and equal treatment with respect to any opportunity for discussion and revision of proposals, 25 |
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| 291 | 291 | | and such revisions may be permitted after submissions and prior to award for the purpose of 26 |
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| 292 | 292 | | obtaining best and final offers. In conducting discussions, there shall be no disclosure of any 27 |
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| 293 | 293 | | information derived from proposals submitted by competing bidders; 28 |
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| 294 | 294 | | (8) Award shall be made to the responsible bidder whose proposal conforms to the 29 |
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| 295 | 295 | | solicitation and is determined in writing to be the most advantageous to the acquiring agency, taking 30 |
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| 296 | 296 | | into consideration the price and the evaluation factors set forth in the request for proposals. No 31 |
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| 297 | 297 | | other factors or criteria shall be used in the evaluation. The contract file shall contain the basis upon 32 |
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| 298 | 298 | | which the award is made. Written notice of the award of a contract to the successful bidder shall be 33 |
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| 299 | 299 | | promptly provided to all bidders; and 34 |
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| 300 | 300 | | |
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| 301 | 301 | | |
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| 302 | 302 | | LC001601 - Page 9 of 14 |
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| 303 | 303 | | (9) The department may provide debriefings that furnish the basis for the source selection 1 |
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| 304 | 304 | | decision and contract award. 2 |
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| 305 | 305 | | (c)(1) A private entity/operator may request a review, prior to submission of a solicited 3 |
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| 306 | 306 | | proposal, by the department of administration that the private entity/operator has identified as 4 |
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| 307 | 307 | | confidential or proprietary to determine whether such administration is subject to disclosure 5 |
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| 308 | 308 | | pursuant to chapter 2 of title 38. 6 |
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| 309 | 309 | | (2) The department shall take appropriate action to protect confidential or proprietary 7 |
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| 310 | 310 | | information that a private entity/operator provides as part of a solicited proposal and that is exempt 8 |
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| 311 | 311 | | from disclosure pursuant to chapter 2 of title 38. 9 |
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| 312 | 312 | | 42-13.2-5. Request for proposals - Content of public-private agreement. 10 |
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| 313 | 313 | | (a) The request for proposals shall contain the proposed form of contract or public-private 11 |
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| 314 | 314 | | agreement to be executed between the successful bidder and the department upon award, and shall 12 |
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| 315 | 315 | | have been approved as to content and form by the special public-private infrastructure oversight 13 |
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| 316 | 316 | | commission and by the department before the request for proposals is issued, pursuant to § 42-13.2-14 |
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| 317 | 317 | | 4. The director of the department of administration or designee shall have thirty (30) days from the 15 |
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| 318 | 318 | | receipt of a draft of the proposed form of contract to notify the special public-private infrastructure 16 |
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| 319 | 319 | | oversight commission in writing of any material objections to the draft form of the contract. Before 17 |
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| 320 | 320 | | issuing any request for proposal, the department shall prepare a written response to reports 18 |
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| 321 | 321 | | submitted to it by the special public-private infrastructure oversight commission which response 19 |
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| 322 | 322 | | shall state the basis for any substantial divergence between the actions of the department and the 20 |
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| 323 | 323 | | recommendations contained in such reports of said commission. The department and the successful 21 |
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| 324 | 324 | | bidder shall only make non-material changes in the content and form of the public-private 22 |
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| 325 | 325 | | agreement contained in the request for proposals. 23 |
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| 326 | 326 | | (b)(1) After selecting a solicited or unsolicited proposal for a public-private initiative, the 24 |
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| 327 | 327 | | department shall enter into the public-private agreement for the subject facility with the selected 25 |
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| 328 | 328 | | private entity/operator. 26 |
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| 329 | 329 | | (2) An affected jurisdiction may be a party to a public-private agreement entered into by 27 |
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| 330 | 330 | | the department and a selected private entity/operator or combination of private entities. 28 |
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| 331 | 331 | | (c) A public-private agreement under this chapter shall provide for the following: 29 |
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| 332 | 332 | | (1) The planning, acquisition, engineering, financing, development, design, construction, 30 |
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| 333 | 333 | | reconstruction, replacement, improvement, maintenance, management, repair, leasing or operation 31 |
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| 334 | 334 | | of a facility including provisions for the replacement and relocation of utility facilities; 32 |
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| 335 | 335 | | (2) The term of the public-private agreement, which shall not exceed fifty (50) years 33 |
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| 336 | 336 | | without written approval of the governor; 34 |
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| 337 | 337 | | |
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| 338 | 338 | | |
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| 339 | 339 | | LC001601 - Page 10 of 14 |
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| 340 | 340 | | (3) The type of property interest, if any, the private entity/operator shall have in the facility; 1 |
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| 341 | 341 | | (4) A description of the actions the department may take to ensure proper maintenance of 2 |
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| 342 | 342 | | the facility; 3 |
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| 343 | 343 | | (5) Whether user fees will be collected on the facility and the basis by which such user fees 4 |
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| 344 | 344 | | shall be determined and modified; 5 |
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| 345 | 345 | | (6) Compliance with applicable federal, state and local laws; 6 |
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| 346 | 346 | | (7) Grounds for termination of the public-private agreement by the department or private 7 |
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| 347 | 347 | | entity/operator; 8 |
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| 348 | 348 | | (8) Procedures for amendment of the agreement by mutual agreement and for changes in 9 |
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| 349 | 349 | | the agreement by written order from the department; 10 |
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| 350 | 350 | | (9) Review and approval by the department of the private entity/operator's plans for the 11 |
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| 351 | 351 | | development and operation of the facility; 12 |
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| 352 | 352 | | (10) Inspection by the department and the independent peer reviewer of the design and 13 |
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| 353 | 353 | | construction of, or improvements to, the facility; 14 |
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| 354 | 354 | | (11) Maintenance by the private entity/operator of a policy of liability insurance or self-15 |
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| 355 | 355 | | insurance reasonably acceptable to the department; 16 |
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| 356 | 356 | | (12) Filing by the private entity/operator, on a periodic basis, of appropriate financial 17 |
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| 357 | 357 | | statements in a form acceptable to the department; 18 |
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| 358 | 358 | | (13) Filing by the private entity/operator, on a periodic basis, of traffic reports, service 19 |
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| 359 | 359 | | quality standards, ridership reports, on time performance reports, or other reports identified by the 20 |
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| 360 | 360 | | department, in a form acceptable to the department; 21 |
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| 361 | 361 | | (14) Financing obligations of the private entity/operator and the department; 22 |
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| 362 | 362 | | (15) Apportionment of expenses between the private entity/operator and the department; 23 |
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| 363 | 363 | | (16) The rights and duties of the private entity/operator, the department, and other state and 24 |
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| 364 | 364 | | local governmental entities with respect to use of the facility; 25 |
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| 365 | 365 | | (17) The rights and remedies available in the event of default or delay; 26 |
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| 366 | 366 | | (18) The terms and conditions of indemnification of the private entity/operator by the 27 |
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| 367 | 367 | | department, as required by applicable law; 28 |
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| 368 | 368 | | (19) Assignment, subcontracting or other delegation of responsibilities of the private entity/ 29 |
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| 369 | 369 | | operator or the department under the agreement to third parties, including other private entities and 30 |
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| 370 | 370 | | other state agencies; 31 |
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| 371 | 371 | | (20) Sale or lease to the private entity/operator of private property related to the facility; 32 |
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| 372 | 372 | | (21) If, and how, the parties shall share costs of development of the project; 33 |
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| 373 | 373 | | (22) If, and how, the parties shall allocate financial responsibility for cost overruns; 34 |
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| 374 | 374 | | |
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| 375 | 375 | | |
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| 376 | 376 | | LC001601 - Page 11 of 14 |
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| 377 | 377 | | (23) Liability for nonperformance; 1 |
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| 378 | 378 | | (24) Any incentives for performance; 2 |
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| 379 | 379 | | (25) Any accounting and auditing standards to be used to evaluate progress on the project; 3 |
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| 380 | 380 | | (26) The private entity/operator's plans to obtain a labor and material payment bond, in 4 |
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| 381 | 381 | | accordance with chapter 2 of title 37, covering all construction, reconstruction or maintenance, 5 |
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| 382 | 382 | | including capital maintenance, work of the project and require the payment of prevailing wages for 6 |
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| 383 | 383 | | labor performed on the project in accordance with chapters 13, 14.1 and 14.3 of title 37; 7 |
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| 384 | 384 | | (27) The private entity/operator's plans for labor harmony for the entire term of the 8 |
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| 385 | 385 | | agreement, including construction, reconstruction and capital and routine maintenance and 9 |
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| 386 | 386 | | adequate remedies to address the private entity/operator's failure to maintain labor harmony which 10 |
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| 387 | 387 | | shall include, but not be limited to, assessment of liquidated damages and contract termination; 11 |
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| 388 | 388 | | (28) A project labor feasibility study if the request for proposal relates to a large-scale 12 |
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| 389 | 389 | | construction project; 13 |
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| 390 | 390 | | (29) Traffic enforcement and other policing issues, subject to § 42-13.2-11, including any 14 |
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| 391 | 391 | | reimbursement by the private entity/operator for such services; 15 |
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| 392 | 392 | | (30) Notwithstanding any general law or special law to the contrary, prior to the award of 16 |
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| 393 | 393 | | any pending/all public private partnership agreement, whereby any/all state, municipal, and or 17 |
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| 394 | 394 | | quasi-public employees represented by a bargaining unit may be displaced, pursuant to the 18 |
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| 395 | 395 | | provisions of chapters 148 and 149 of title 42; and 19 |
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| 396 | 396 | | (31) Any other terms and conditions. 20 |
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| 397 | 397 | | 42-13.2-6. End of term or termination of public-private agreement. 21 |
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| 398 | 398 | | Upon the end of the term of the public-private agreement or in the event of termination of 22 |
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| 399 | 399 | | the public-private agreement, the department and duties of the private entity/operator shall cease, 23 |
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| 400 | 400 | | except for any duties and obligations that extend beyond the termination as provided in the public-24 |
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| 401 | 401 | | private agreement, and all the rights, title and interest in such qualified facility shall revert to the 25 |
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| 402 | 402 | | department and shall be dedicated to the department for public use. 26 |
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| 403 | 403 | | 42-13.2-7. Rights of department upon material default by a private entity/operator. 27 |
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| 404 | 404 | | (a) Upon the occurrence and during the continuation of a material default by a private 28 |
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| 405 | 405 | | entity/operator, not caused by an event of force majeure, and upon the failure by the private 29 |
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| 406 | 406 | | entity/operator acting in the capacity as a contractor or its financing institution on the contractor's 30 |
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| 407 | 407 | | behalf, to cure such material default within thirty (30) days of written notice of such default by the 31 |
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| 408 | 408 | | department, the department of administration may: 32 |
|---|
| 409 | 409 | | (1) Elect to take over the facility, including the succession of all right, title and interest in 33 |
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| 410 | 410 | | the facility; and 34 |
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| 411 | 411 | | |
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| 412 | 412 | | |
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| 413 | 413 | | LC001601 - Page 12 of 14 |
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| 414 | 414 | | (2) Terminate the public-private agreement and exercise any other rights and remedies 1 |
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| 415 | 415 | | available. 2 |
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| 416 | 416 | | (b) In the event that the department elects to take over a facility under subsection (a) of this 3 |
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| 417 | 417 | | section, the department: 4 |
|---|
| 418 | 418 | | (1) Shall make interim payments, on behalf of the contractor and for the contractor's 5 |
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| 419 | 419 | | account, of any amounts subject to a mechanics lien law of the state; 6 |
|---|
| 420 | 420 | | (2) May develop and operate the facility, impose user fees for the use of the facility and 7 |
|---|
| 421 | 421 | | comply with any service contracts; and 8 |
|---|
| 422 | 422 | | (3) May solicit proposals for the maintenance and operation of the facility under § 42-13.2-9 |
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| 423 | 423 | | 4. 10 |
|---|
| 424 | 424 | | 42-13.2-8. Issue and sale of bonds or notes of the department. 11 |
|---|
| 425 | 425 | | (a)(1) The department may request authorization from the state to issue and sell bonds or 12 |
|---|
| 426 | 426 | | notes of the department for the purpose of providing funds to carry out the provisions of this 13 |
|---|
| 427 | 427 | | chapter, with respect to the development, financing or operation of a facility or the refunding of 14 |
|---|
| 428 | 428 | | any bonds or notes, together with any costs associated with the transaction. 15 |
|---|
| 429 | 429 | | (2) Any bond or note issued under this section: 16 |
|---|
| 430 | 430 | | (i) Shall constitute the corporate obligation of the department; 17 |
|---|
| 431 | 431 | | (ii) Shall not constitute a debt of the state within the meaning or application of the 18 |
|---|
| 432 | 432 | | constitution of the state; and 19 |
|---|
| 433 | 433 | | (iii) Shall be payable solely as to both principal and interest from: 20 |
|---|
| 434 | 434 | | (A) The revenues from a lease to the department, if any; 21 |
|---|
| 435 | 435 | | (B) Proceeds of bonds or notes, if any; 22 |
|---|
| 436 | 436 | | (C) Investment earnings on the proceeds of bonds or notes; or 23 |
|---|
| 437 | 437 | | (D) Other funds available to the department for such purpose. 24 |
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| 438 | 438 | | (b)(1) For the purpose of financing a facility, the department and operator may apply for, 25 |
|---|
| 439 | 439 | | obtain, issue and use private activity bonds available under any federal law or program. 26 |
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| 440 | 440 | | (2) Any bonds, debt, other securities or other financing issued for the purposes of this 27 |
|---|
| 441 | 441 | | chapter, shall not be considered a debt of the state or any political subdivision thereof or a pledge 28 |
|---|
| 442 | 442 | | of the full faith and credit of the state or any political subdivision of the state. 29 |
|---|
| 443 | 443 | | (c) Nothing in this section shall be construed as a prohibition on a local government or any 30 |
|---|
| 444 | 444 | | authority of the state to issue authorized bonds for infrastructure projects. 31 |
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| 445 | 445 | | 42-13.2-9. Acceptance of funds from the federal government and other sources. 32 |
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| 446 | 446 | | (a)(l) The department may accept from the federal government or any of its agencies funds 33 |
|---|
| 447 | 447 | | that are available to the state for carrying out the provisions of this chapter, whether the funds are 34 |
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| 448 | 448 | | |
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| 449 | 449 | | |
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| 450 | 450 | | LC001601 - Page 13 of 14 |
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| 451 | 451 | | made available by grant, or other financial assistance. 1 |
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| 452 | 452 | | (2) The department may enter into agreements or other arrangements with the federal 2 |
|---|
| 453 | 453 | | government or any of its agencies as may be necessary for implementing the purposes of this 3 |
|---|
| 454 | 454 | | chapter. 4 |
|---|
| 455 | 455 | | (b) The department may accept from any source any grant, donation, gift or other form of 5 |
|---|
| 456 | 456 | | conveyance of land, money, other real or personal property or other item of value made to the state 6 |
|---|
| 457 | 457 | | or the department for implementing the purposes of this chapter. 7 |
|---|
| 458 | 458 | | (c) Any facility may be financed, in whole or in part, by contribution of any funds or 8 |
|---|
| 459 | 459 | | property made by any private entity/operator or affected jurisdiction that is party to a public-private 9 |
|---|
| 460 | 460 | | agreement under this chapter. 10 |
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| 461 | 461 | | (d) The department may combine federal, state, local and private funds to finance a facility 11 |
|---|
| 462 | 462 | | under this chapter. 12 |
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| 463 | 463 | | 42-13.2-10. Exercise of power of eminent domain. 13 |
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| 464 | 464 | | The State of Rhode Island may exercise the power of eminent domain to acquire property, 14 |
|---|
| 465 | 465 | | rights of way or other rights in property for projects that are part of a public-private agreement for 15 |
|---|
| 466 | 466 | | design-build-finance-operate-maintain or design-build-operate-maintain services. 16 |
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| 467 | 467 | | 42-13.2-11. Sovereign immunity. 17 |
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| 468 | 468 | | Nothing in this chapter shall limit any waiver of the sovereign immunity of the state or any 18 |
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| 469 | 469 | | officer or employee of the state or any officer or employee of the state with respect to the 19 |
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| 470 | 470 | | participation in or approval of all or any part of the facility or its operation. 20 |
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| 471 | 471 | | SECTION 2. This act shall take effect upon passage. 21 |
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| 472 | 472 | | ======== |
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| 473 | 473 | | LC001601 |
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| 474 | 474 | | ======== |
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| 475 | 475 | | |
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| 476 | 476 | | |
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| 477 | 477 | | LC001601 - Page 14 of 14 |
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| 478 | 478 | | EXPLANATION |
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| 479 | 479 | | BY THE LEGISLATIVE COUNCIL |
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| 480 | 480 | | OF |
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| 481 | 481 | | A N A C T |
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| 482 | 482 | | RELATING TO STATE AFFAIRS AND GOVERNMENT -- PUBLIC-PRIVATE |
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| 483 | 483 | | PARTNERSHIP INFRASTRUCTURE PROGRAM |
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| 484 | 484 | | *** |
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| 485 | 485 | | This act would establish a seven (7) member public-private partnership infrastructure 1 |
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| 486 | 486 | | oversight commission to approve all requests for proposals submitted for public-private partnership 2 |
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| 487 | 487 | | construction of qualified facilities. This act would also establish a new scheme outlining the request 3 |
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| 488 | 488 | | for proposal process for the construction of public-private qualified facilities and would further 4 |
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| 489 | 489 | | provide for the state to exercise the power of eminent domain relating to the construction of such 5 |
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| 490 | 490 | | qualified facilities. 6 |
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| 491 | 491 | | This act would take effect upon passage. 7 |
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| 492 | 492 | | ======== |
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| 493 | 493 | | LC001601 |
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| 494 | 494 | | ======== |
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| 495 | 495 | | |
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