New Jersey Administrative Code › Title 17 - TREASURY - GENERAL › Chapter 49 - PUBLIC-PRIVATE PARTNERSHIPS RULES › Subchapter 9 - STATE OR COUNTY COLLEGE OR UNIVERSITY PROCEDURES AND REQUIREMENTS › Section 17:49-9.5 - Project review

Current through Register Vol. 56, No. 14, July 15, 2024
(a) A county
				college, State college, or State university shall provide the Office of Public
				Finance, the following items for review of a public-private partnership project
				in an application format prescribed by the Office of Public Finance:
1. A full description of the proposed
				public-private partnership project;
2. A copy of the proposed public-private
				partnership agreement between the county college, State college, or State
				university and the private entity, including any supporting documents, such as
				the development agreement, any relevant contracts and leases, and all
				information obtained by, and findings of, the county college, State college, or
				State university, as well as a redacted copy of all materials for purposes of
				providing any public document as required under the Open Public Records
				Act;
3. A proposed public-private
				partnership agreement between the county college, State college, or State
				university and the private entity shall include the following minimum criteria:
i. An agreement term length clearly defined
				to include the estimated construction and operational period, as
				needed;
ii. A complete description
				of the public-private partnership project to be developed and the functions and
				responsibilities to be performed by the county college, State college, or State
				university and the private entity;
iii. Terms regarding the planning,
				acquisition, financing, development, design, construction, reconstruction,
				rehabilitation, replacement, improvement, maintenance, management, operation,
				repair, leasing, and ownership of the public-private partnership
				project;
iv. A provision allowing
				express permission of the public entity, and State and local officials, to
				inspect project related assets or property; such provision shall include any
				specific limitations, particular requirements, or allowances related to such
				review. Examples of limitations, particular requirements or allowances may
				include, but are not limited to, any notice requirements, time constraints, or
				review restrictions;
v. The roles
				and responsibilities of the parties for the duration of the
				agreement;
vi. Requirements for
				bonds or other forms of security in amounts acceptable to the State or county
				college or university;
vii.
				Standards and rights of parties relating to payments by the State or county
				college or university to the private entity if payments are part of the
				project;
viii. Requirements for any
				payment by the private entity of any costs incurred by the State or county
				college or university before execution of the public-private partnership
				agreement, including costs of retaining independent experts to review, analyze,
				and advise the county college, State college, or State university with respect
				to the project;
ix. Standards for
				construction and maintenance of the project;
x. Standards for allocation of costs of
				development including allocation of liability for cost overruns;
xi. Performance criteria and incentives, if
				any;
xii. Risk mitigation plans and
				responsibilities at all project stages, including at project development,
				construction, operations, and maintenance, for both the private entity and
				county college, State college, or State university;
xiii. The rights that the county college,
				State college, or State university and the private entity may have, if any, to
				revenue generated as a result of the agreement, and any standards for
				allocation of such revenue between the parties;
xiv. A maximum rate of return to the private
				entity and a provision for the distribution of excess earnings to the State or
				county college or university or to the private party for debt
				reduction;
xv. The minimum quality
				standards, technical requirements, and/or performance criteria applicable to
				the public-private partnership project, including key performance indicators,
				reporting requirements, incentives, cure periods, standards of performance or
				metrics including performance points systems, monitoring rights of the State or
				county college or university, and penalties for failure to achieve these
				standards;
xvi. A maintenance plan
				for the full life cycle of the public-private partnership project;
xvii. A hand-back plan that includes
				requirements regarding return of the facility in a state of good repair and
				standards for determining such state of repair;
xviii. Any compensation and/or revenue
				structure of the private entity related to the project coming into the private
				entity, including the extent to which, and terms upon which, the private entity
				may charge fees to individuals and entities for the use of the public-private
				partnership project, as well as a full payment schedule (if
				applicable);
xix. Rights and
				remedies, including, but not limited to, compensatory, liquidated, or other
				types of damages, and dispute resolution procedures available or applicable in
				the event of nonperformance or breach of contract, up to and including material
				default;
xx. Procedures for notice
				and cure of default;
xxi. Insurance
				requirements for any project to be operated by the private entity;
xxii. Grounds for termination of the
				public-private partnership agreement by the State or county college or
				university and the financial impact of that termination;
xxiii. Grounds for termination of the
				public-private partnership agreement by the private entity and the financial
				impact of that termination;
xxiv.
				Procedures for amending the public-private partnership agreement;
xxv. Provisions for the termination of the
				public-private partnership agreement and the disposition of the public-private
				partnership facility upon termination;
xxvi. Identification of funding sources to be
				used to fully fund the capital, operation, maintenance, and other expenses
				under the public-private partnership agreement;
xxvii. The nature of the State or county
				college or university and private entity's property interest including the
				acquisition of any property, of which the State or State or county college or
				university shall retain full ownership of the land upon which the project is
				located;
xxviii. An articulation of
				the legal relationship and requirements of the parties involved, including the
				rights and responsibilities of the parties as to design elements, technologies,
				techniques, methods, information, or intellectual property contained in an
				agreement;
xxix. Details on
				distribution of costs between the private entity and county college, State
				college, or State university, including costs of retaining independent experts
				to review, analyze, and advise the county college, State college, or State
				university with respect to the proposal, and any stipends authorized for work
				completed, which shall not exceed 0.5 percent of the project total; and
xxx. When applicable, a provision
				in the agreement establishing that the private entity will not take any action
				or fail to take any action, if any such action or failure to take action would
				adversely affect the exclusion from gross income of the interest on any
				Outstanding Tax-Exempt Bonds under Section 103 of the Internal Revenue Code
				(Code). The provision shall also establish that the applicant will not directly
				or indirectly use or permit the use of any proceeds of any Outstanding
				Tax-Exempt Bonds or take or omit to take any action that would cause any
				Outstanding Tax-Exempt Bond to be an "arbitrage bond" within the meaning of
				Section 148 (a) of the Code;
4. A project agreement, including the
				following terms and conditions:
i. Ensure each
				worker employed in the construction, rehabilitation, or building maintenance
				services of facilities by a private entity that has entered into a
				public-private partnership agreement with a State or county college or
				university be paid not less than the prevailing wage rate for the worker's
				craft or trade as determined by the Commissioner of Labor and Workforce
				Development pursuant to P.L. 1963, c. 150 (N.J.S.A. 34:11-56.25et seq.) and P.
				L.
				2005, c. 379 (N.J.S.A.
				34:11-56.58et seq.);
ii. Guarantee
				that any building construction projects under a public-private partnership
				agreement contain a project labor agreement. The project labor agreement shall
				be subject to N.J.S.A. 52:38-1et seq., and shall be in a manner that, to the
				greatest extent possible, enhances employment opportunities for individuals
				residing in the county of the project's location;
iii. Ensure the general contractor,
				construction manager, design-build team, or subcontractor for a construction
				project be registered pursuant to N.J.S.A. 34:11-56.48et seq., and be
				classified by the Division of Property Management and Construction, or shall be
				pre-qualified by the Department of Transportation, New Jersey Transit, or the
				New Jersey Turnpike Authority, as appropriate, to perform work on a
				public-private partnership project;
iv. When practicable, adhere to the
				Leadership in Energy and Environmental Design Green Building Rating System as
				adopted by the United States Green Building Council, the Green Globes Program
				adopted by the Green Building Initiative, or a comparable nationally
				recognized, accepted, and appropriate sustainable development rating system and
				the green building manual prepared by the Commissioner of Community Affairs
				pursuant to
				section
				1 of
				P.L.
				2007, c. 132 (N.J.S.A.
				52:27D-130.6);
v. Ensure that the
				general contractor, construction manager, or design-build contractor post a
				performance bond to ensure the completion of the project and a payment bond
				guaranteeing prompt payment of moneys due in accordance with and conforming to
				the requirements of N.J.S.A. 2A:44-143et seq.;
vi. Where a project is less than $ 50
				million, include a requirement that precludes contractors from engaging in the
				project if the contractor has contributed to the private entity's financing of
				the project in an amount of more than 10 percent of the project's financing
				costs;
vii. Where appropriate,
				include a requirement that work performed under the agreement is subject to the
				provisions of the Construction Industry Independent Contractor Act,
				P.L.
				2007, c. 114 (N.J.S.A.
				34:20-1et seq.); and
viii. In the
				event that a private entity assumes full financial and administrative
				responsibility for a project, a stipulation that the private entity shall not
				be subject to the procurement and contracting requirements of statutes
				applicable to the county college, State college, or State university at which
				the project is completed, including, but not limited to, the State College
				Contracts Law, P.L. 1986, c. 43 (N.J.S.A. 18A:64-52et seq.), and the County
				College Contracts Law, P.L. 1982, c. 189 (N.J.S.A. 18A:64A-25.1et
				seq.);
5. A county
				college, State college, or State university shall provide the estimated costs,
				including development and operating costs, as well as financial documentation
				for the project showing the underlying financial models and assumptions that
				determined the estimated costs. The financial documentation shall include:
i. At least three different projected
				estimated costs showing scenarios in which materially different economic
				circumstances are assumed and an explanation for how the estimated costs were
				determined based on the three scenarios, including a net present value analysis
				for each of the scenarios; and
ii.
				A long-range maintenance plan and a long-range maintenance bond specifying the
				expenditures that qualify as an appropriate investment in
				maintenance;
6. A
				completed Initial Screening Tool, including any changes to the project made in
				response to the results of the self-assessment;
7. A completed project analysis, including
				any supporting documents, as well as documentation of the qualification of any
				experts retained to perform any aspect of the project analysis;
8. A timetable for completion of the
				construction of the project, including all pre-development, development
				phases;
9. All relevant engineering
				and architectural plans, drawings, and schematics;
10. An analysis of all available funding
				options for the project, including an analysis of the financial viability and
				advisability of such project, along with evidence of the public benefit in
				advancing the project as a public-private partnership;
11. A performance monitoring plan for the
				agreement. The performance monitoring plan will provide details on how the
				State or county college or university will monitor the performance of the
				private entity for the full term of the agreement. This plan shall identify the
				required skills and resources for monitoring performance, specify schedules for
				periodic monitoring, and specify the requirements for the preparation and
				issuance of reports and/or updates to support performance monitoring, and
				specify any applicable metrics for monitoring performance, including the use of
				possible performance-points systems, including any performance bonuses or
				reductions based upon the early or late completion and delivery of a project,
				the use of possible performance-points systems, and any performance bonuses or
				reductions based upon the early or late completion and delivery of a
				project;
12. A record of the public
				hearing held, including any public comments received and responses to public
				comments;
13. A resolution by the
				county college, State college, or State university's governing board of its
				intent to enter into a public-private partnership agreement pursuant to this
				section;
14. Information on
				experts' qualification and industry experience;
15. An affirmation by both parties that any
				proposed procurement springing from the public private partnership project
				contains all necessary elements, based upon minimum contract standards outlined
				in N.J.A.C. 17:49-9.5; and
16. When
				applicable, an opinion of Bond Counsel, defined as an opinion signed by an
				attorney or firm of attorneys in good standing in the field of law related to
				municipal bonds, that such project will not adversely affect the tax-exempt
				status of any Outstanding Bonds.