Public-private partnerships. The procurement of personal property and services for public-private partnerships (P3) shall be in accordance with Fla. Stat. § 255.065.
(A) Definitions.
CONCEPTUAL PROPOSAL. An unsolicited proposal that includes conceptual information sufficient for the City to determine whether the proposed ideas are attractive enough to justify investment of City resources to undertake a process that may lead to formation of a contract to implement the ideas.
DETAILED PROPOSAL. A proposal (solicited or unsolicited) that contains detail beyond a conceptual level sufficient for the City to compare the proposal competitively to others.
P3. A public-private partnership, which is an agreement between the City and a private entity that allows for greater private sector participation in the delivery of a City qualifying project.
PRIVATE ENTITY. Any natural person, corporation, general partnership, limited liability company, limited partnership, joint venture, business trust, public benefit corporation, nonprofit entity, or other private business entity.
PROPOSAL REVIEW FEE. The fee paid by the private entity submitting an unsolicited proposal or by the private entity submitting a detailed proposal that competes with an unsolicited proposal.
QUALIFYING PROJECT. A facility or project that serves a public purpose, or a facility or infrastructure that is used or will be used by the public or in support of a public purpose or activity, as defined in the P3 Statute.
SOLICITATION. City initiated procurement process seeking offers (bids, proposals, or otherwise) for City projects, which may include processes authorized by (1) the Procurement Ordinance of the City of Palm Bay; (2) Fla. Stat. §§ 255.20 or 287.055, or (3) any other law or the City's home rule powers.
UNSOLICITED PROPOSAL. A conceptual proposal or a detailed proposal that a private entity submits to the City on its own initiative, and not in response to a solicitation.
(B) Conceptual proposal.
(1) A private entity may submit a conceptual proposal to the City, to gauge the City's potential interest in pursuing the proposed project as a P3. A conceptual proposal is not required. A private entity may forego submitting a conceptual proposal and submit an unsolicited detailed proposal.
(2) A private entity must tender a proposal review fee of five thousand dollars ($5,000) with its conceptual proposal. The City will not review a conceptual proposal that is not accompanied by the payment of this fee.
(3) A conceptual proposal must contain information sufficient to inform the City about (1) the overall character of the proposed qualifying project; (2) the general experience of the private entity; and (3) the general strategies to ensure successful project delivery.
(4) Within ten (10) business days after receipt of the conceptual proposal, the City will either (1) summarily reject the conceptual proposal and return the proposal review fee; or (2) accept the conceptual proposal for substantive review and notify the private entity of the anticipated time required for the City to complete the review of the conceptual proposal.
(5) If the City decides to accept the conceptual proposal for substantive review, the City will preliminarily assess whether: (1) the proposed project is a qualifying project; (2) the proposed project delivery model offers advantages over traditional models, for example, lower cost, shorter schedule, increased investment, etc.; (3) the proposed project is reasonably likely to satisfy the criteria established by the P3 Statute.
(6) Upon completion of review of the conceptual proposal, the city will notify the private entity in writing of the City's position regarding the proposed project. The City may:
(a) Decide not to pursue the proposed project;
(b) Decide to pursue the proposed project, or a similar project, using other procurement methods (in which, if open to private companies, the private entity may compete if otherwise qualified); or
(c) Decide to continue considering the proposed project under the P3 Statute and request the private entity to submit a detailed proposal (which request shall not constitute a formal solicitation).
(7) The City's disposition of a conceptual proposal does not limit its discretion or authority with respect to future projects, whether solicited or unsolicited.
(C) Unsolicited detailed proposals.
(1) A private entity may submit an unsolicited detailed proposal to the City, to initiate the City's consideration of whether to deem the proposed project as a qualifying project and whether to pursue it further under the P3 Statute. The City is not obligated to pursue a project under the P3 Statute, even if the project satisfies the statutory definition of a qualifying project.
(2) A private entity must tender a proposal review fee of twenty-five thousand dollars ($25,000) with its detailed proposal, unless the private entity has already paid a fee for review of a substantially similar conceptual proposal, in which case the proposal review fee is twenty thousand dollars ($20,000). The City will not review a detailed proposal that is not accompanied by the payment of this fee. The proposal review fee is non-refundable.
(3) A detailed proposal must contain information sufficient to inform the City about: the detailed quality and character of the proposed qualifying project; the detailed experience and capacity of the private entity; and the detailed financial and implementation strategies to ensure successful project delivery. This information should include the following:
(a) A description of the private entity, including name, address, type of organization, and legal structure.
(b) Name and complete contact information of the primary point of contact for the detailed proposal.
(c) Names and experience of proposed key project personnel.
(d) Type of support needed, if any, from the City, for example, facilities, equipment, materials, personnel, financial resources, etc.
(e) Identification of any proprietary data used and the manner in which it is used.
(f) Identification of any outside entities or professionals the private entity has or intends to consult with respect to the project.
(g) The names of any other federal, state, or local agencies receiving the same proposal.
(h) A complete discussion of the objective of the project, the method of approach, the nature of the anticipated results, and the characteristics that make it a qualifying project worthy of pursuit by the City.
(i) A detailed overview of the proposed business arrangements, including the plan for the development, financing, and operation of the project.
(j) A preliminary project schedule.
(k) A detailed financial analysis of the proposed project.
(l) Specification as to when the pricing or terms of the proposal will expire.
(4) Within ninety (90) business days after receipt of the detailed proposal, the City will notify the private entity in writing of the City's decision either to reject the detailed proposal or to accept the detailed proposal for competitive review. During this period, the City may meet with the private entity to gain a deeper understanding of the detailed proposal, and the City may request that the private entity submit additional information. These meetings will be preliminary in nature, and will not include or constitute substantive negotiation of agreement terms. In considering whether to accept the detailed proposal for competitive review, the City will assess whether: (1) the proposed project is a qualifying project; (2) the proposed project delivery model offers advantages over traditional models, for example, lower cost, shorter schedule, increased investment, etc.; (3) the proposed project is reasonably likely to satisfy the criteria established by the P3 Statute. The City may determine that it requires more than ninety (90) days to complete its review of the detailed proposal and this assessment, in which case it will notify the private entity in writing of how much time will be required.
(5) An unsolicited proposal may be rejected by the City at any time. The City has complete discretion and authority to reject any unsolicited proposal it receives.
(6) If the City decides to accept an unsolicited proposal for competitive review, the City will follow the procedural notice requirements as provided for in the P3 Statute, including notice to affected local jurisdictions.
(7) If the City decides to accept an unsolicited proposal for competitive review, the City will advertise the potential opportunity and accept competing detailed proposals as required in the P3 Statute.
(a) The advertisement will include: a general description of the qualifying project; an invitation to submit a competing detailed proposal for the qualifying project with or without a proposal review fee (if required), which may propose the identical project, a functionally equivalent project, or an alternative project that achieves the same purpose or uses the same City resources as the proposed project; information about how to obtain more detailed information; and a due date for responding as defined in the P3 Statute, which may be up to one hundred twenty (120) days as the circumstances warrant.
(b) The City will advertise the potential opportunity in the Florida Administrative Register at least once a week for two consecutive weeks; in a newspaper of general circulation within the City at least once a week for two weeks prior to the due date for competing proposals; and on the City's website in the same manner as competitive solicitations.
(D) Solicited detailed proposals.
(1) The City may on its own initiative determine to issue a solicitation inviting private entities to submit detailed proposals for any opportunity that the City has identified as a qualifying project.
(2) Any solicitation that the City issues under the authority of the P3 Statute will identify the P3 Statute and the City's related Code sections as the governing procurement process. The solicitation documents will specify information necessary for interested parties to understand and respond to the solicitation.
(3) If a solicited qualifying project includes design work, the solicitation will include a design criteria package prepared by an architect, landscape architect, or engineer licensed in this state, in accordance with Fla. Stat. § 255.065(3)(c). The design criteria package will be sufficient to allow private entities to prepare a bid or a response. The licensed design professional who prepares the design criteria package will remain in the service of the City until the qualifying project is completed.
(4) The City is not obligated to proceed under the P3 Statute when soliciting proposals, and may follow any legally available procurement process, regardless of whether the project qualifies as a qualifying project and regardless of whether the ultimate transaction may be characterized as a P3.
(E) Competitive review and negotiation of detailed proposals.
(1) Whether received in response to a solicitation under the P3 Statute or in response to an advertisement concerning an unsolicited proposal, the City will designate a negotiation team to conduct negotiations concerning the qualifying project. No person with a financial interest in the outcome of the negotiation team's efforts or in the qualifying project may participate on the negotiation team.
(2) The negotiation team's meetings are temporarily exempt from the Sunshine Law as provided in Fla. Stat. § 286.0113(2), and Fla. Stat. § 255.065(15). The City will record and preserve as required by law any exempt portion of a negotiation team meeting.
(3) The negotiation team will conduct negotiations in accordance with the P3 Statute.
(4) In its discretion, the negotiation team may recommend that the City and the private entity enter into an interim agreement as described in the P3 Statute. The negotiation team is not authorized to enter into or otherwise bind the City to an interim agreement. Any recommendation to enter into an interim agreement will be brought to the City Council for consideration. Only the City Council is authorized to approve an interim agreement.
(5) The negotiation team may recommend that the City and the private entity enter into a comprehensive agreement as described in the P3 Statute. The negotiation team is not authorized to enter into or otherwise bind the City to a comprehensive agreement. Any recommendation to enter into a comprehensive agreement will be brought to the City Council for consideration. Only the City Council is authorized to approve a comprehensive agreement.
(6) In deciding whether to enter into a comprehensive agreement, the City Council will consider and determine all reasonable factors, including but not limited to:
(a) Whether the proposed project is a qualifying project.
(b) Whether the qualifying project is in the public's best interest.
(c) Whether the qualifying project involves a facility that is owned by the City or for a facility for which ownership will be conveyed to the City.
(d) Whether the comprehensive agreement has adequate safeguards in place to ensure that additional costs or service disruptions are not imposed on the public in the event of material default by the private entity or cancellation of the qualifying project by the City.
(e) Whether the comprehensive agreement has adequate safeguards in place to ensure that the City or the private entity has the opportunity to add capacity to the qualifying project or other facilities serving similar predominantly public purposes.
(f) Whether the qualifying project will be owned by the City upon completion or termination of the project and payment of amounts financed.
(g) Whether there is a public need for or benefit derived from the qualifying project.
(h) Whether the estimated cost of the qualifying project is reasonable in relation to similar facilities.
(i) Whether the comprehensive agreement will result in the timely acquisition, design, construction, improvement, renovation, expansion, equipping, maintenance, or operation of the qualifying project.
(Ord. 2020-72, passed 11-5-20)