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HomeMy WebLinkAbout2022-001-442_-_Public_Private_Partnership_-_Adopted.docxORDINANCE NO. 2022-001-442 AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF MIAMI GARDENS, FLORIDA, AMENDING CHAPTER 2 OF THE CODE OF ORDINANCES ENTITLED “PURCHASING” TO CREATE ARTICLE IX - DIVISION 7 ENTITLED “PUBLIC- PRIVATE PARTNERSHIPS”; PROVIDING FOR ADOPTION OF REPRESENTATIONS; REPEALING ALL ORDINANCES IN CONFLICT; PROVIDING A SEVERABILITY CLAUSE; PROVIDING FOR INCLUSION IN CODE; PROVIDING AN EFFECTIVE DATE WHEREAS, the Legislature of the State of Florida (“Legislature”) found that there is a public need for the construction or upgrade of facilities that are used predominately for public purposes, and WHEREAS, there is a public need for timely and cost-effective construction, improvement, and maintenance of public infrastructure and government facilities within the state which serve a public need and purpose, and that such public need may not be wholly satisfied by existing procurement methods, and WHEREAS, public-private partnerships can meet these needs by improving the schedule for delivery, lowering the cost, and providing other benefits to the public, and WHEREAS, currently, the City of Miami Gardens (“City”) does not have a provision in its Code of Ordinances pertaining to public-private partnerships as outlined in the Florida Statues, and WHEREAS, the proposed Public-Private Partnership Ordinance (“Ordinance”) will codify provisions by which the City may contract with private entities for the improvement and development of public infrastructure, as defined in the F.S. 255.065, and WHEREAS, the Ordinance also provides a manner in which certain unsolicited proposals may be treated as unsolicited proposals for qualifying projects as defined in Florida Statute § 255.065, and WHEREAS, the City Attorney and City Manager recommend that the City Council adopt the attached Ordinance establishing a Public-Private Partnership Ordinance for the City of Miami Gardens, NOW, THEREFORE, BE IT ORDAINED BY THE CITY COUNCIL OF THE CITY OF MIAMI GARDENS, FLORIDA, AS FOLLOWS: Section 1. ADOPTION OF REPRESENTATIONS: The foregoing Whereas paragraphs are hereby ratified and confirmed as being true, and the same are hereby made a specific part of this Ordinance. DocuSign Envelope ID: 3B6AAF81-B19E-48FB-B17A-4BFC391DE350 Page 2 of 11 Ordinance No. 2022-001-442 Section 2. AMENDMENT: That the Code of Ordinances, City of Miami Gardens, Florida, is hereby amended by adding Chapter 2, Article IX - Division 7 entitled “Purchasing,” as follows: Sec. 2-830. - Policy and intent It is the purpose and intent of the city to create a manner in which the city and private entities may enter into partnerships pursuant to F.S. §255.065, as amended from time to time, relating to unsolicited proposals, public records and public meetings exceptions, and public private partnerships. Sec. 2-831. - Definitions For purposes of this section, the following words shall have the same meanings ascribed to them as in F.S. § 255.065, as amended: (a) Authorizing Resolution means a resolution passed by the city council upon its own initiative or upon a recommendation of the city staff to treat an unsolicited proposal as a qualifying project as defined herein, (b) Competitive solicitation means the process of requesting and receiving sealed bids, proposals, or replies in accordance with the terms of a competitive process, regardless of the method of procurement, (c) Qualifying project means: a. A facility or project that serves a public purpose, including, but not limited to, any ferry or mass transit facility, vehicle parking facility, airport or seaport facility, rail facility or project, fuel supply facility, oil or gas pipeline, medical or nursing care facility, recreational facility, sporting or cultural facility, or educational facility or other building or facility that is used or will be used by a public educational institution, or any other public facility or infrastructure that is used or will be used by the public at large or in support of an accepted public purpose or activity; b. An improvement, including equipment, of a building that will be principally used by the city or the public at large or that supports a service delivery system in the public sector; c. A water, wastewater, or surface water management facility or other related infrastructure; or d. Notwithstanding any provision of this section, for projects that involve a facility owned or operated by the governing board of a county, district, or municipal hospital or health care system, or projects that involve a facility owned or operated by a municipal electric utility, only those projects that the city council designates as qualifying projects pursuant to this section. (d) Private entity means 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, Sec. 2-832. - Procurement Procedures The City may receive unsolicited proposals or may solicit proposals for a qualifying project and may thereafter enter into a comprehensive agreement with a private entity, or DocuSign Envelope ID: 3B6AAF81-B19E-48FB-B17A-4BFC391DE350 Page 3 of 11 Ordinance No. 2022-001-442 a consortium of private entities, for the building, upgrading, operating, ownership, or financing of facilities. (a) Unsolicited Proposals. The City may receive unsolicited proposals for a qualifying project and may thereafter enter into a comprehensive agreement with a private entity. The unsolicited proposal must include: a. An initial application fee, which amount shall be set by separate Resolution, must be paid by cashier's check or any other non-cancelable instrument. Personal checks may not be accepted. If the city does not evaluate the unsolicited proposal, the city shall return the application fee. b. The following materials and information, unless waived by the city: i. A description of the qualifying project, including the conceptual design of the facilities or a conceptual plan for the provision of services, and a schedule for the initiation and completion of the qualifying project. ii. A description of the method by which the private entity proposes to secure the necessary property interests that are required for the qualifying project. iii. A description of the private entity’s general plans for financing the qualifying project, including the sources of the private entity’s funds and the identity of any dedicated revenue source or proposed debt or equity investment on behalf of the private entity. iv. The name and address of a person who may be contacted for additional information concerning the proposal. v. The proposed user fees, lease payments, or other service payments over the term of a comprehensive agreement, and the methodology for and circumstances that would allow changes to the user fees, lease payments, and other service payments over time. vi. Additional material or information that the city reasonably requests, including but not limited to: 1. Information on how the project would benefit small and community based contractors within the city. 2. A listing of all small business enterprises which are proposed to participate in the project and the proposed scope of each. 3. A listing of all proposed obligations and requirements of the city, including but not limited to, contributions to project financing, staffing and permitting. 4. Compliance with the City of Miami Gardens Business and Resident Economic Growth Plan (CMG-BREP) detailing how the entity plans to provide employment, training, apprenticeship, and mentoring opportunities to the city's residents. DocuSign Envelope ID: 3B6AAF81-B19E-48FB-B17A-4BFC391DE350 Page 4 of 11 Ordinance No. 2022-001-442 c. If the initial application fee does not cover the city’s cost to evaluate the unsolicited proposal, the city shall request, in writing, the additional amount required. The private entity must pay the requested additional amount within 30 days after receipt of the notice. The city may stop its review of the unsolicited proposal if the private entity fails to pay the additional amounts. d. In considering an unsolicited proposal, the city may require the private entity to provide a technical study as set forth in section 255.065(3)(f), Florida Statutes. e. If the city receives an unsolicited proposal for a qualifying project pursuant to this section and the city desires to enter into an agreement with the private entity or consortium of private entities submitting same, the city shall: i. Notify the city council of the receipt of said unsolicited proposal by placement of a discussion item on the next available city council meeting agenda. ii. Upon the city council's approval to proceed with said unsolicited proposal project, the city shall publish public notice in the Florida Administrative Register and a local newspaper of general circulation at least once a week for 2 weeks, on the city's procurement website and/or via the on-line procurement/bidding platform, and a newspaper of general circulation at least once a week for a minimum of two weeks stating that the city has received an unsolicited proposal and that the city will accept other proposals for the same qualifying project. f. The timeframe for allowing other proposals shall be no fewer than 21 days but no more than 120 days after the initial date of publication. g. A copy of the notice must be mailed to each local government in the affected area of the qualifying project which shall mean Miami-Dade County and/or any municipality and/or special district in which all or a portion of the qualifying project is located. (b) Approval of comprehensive agreement. Before approving a comprehensive agreement, as such term is described below and in accordance with section 255.065 of the Florida Statutes, with any private entity, the city must determine that the proposed project: a. Is in the public’s best interest. b. Is for a facility that is owned by the city or for a facility for which ownership will be conveyed to the city. c. Has adequate safeguards in place to ensure that: i. additional costs or service disruptions are not imposed on the public in the event of material default or cancellation of the comprehensive agreement by the city. DocuSign Envelope ID: 3B6AAF81-B19E-48FB-B17A-4BFC391DE350 Page 5 of 11 Ordinance No. 2022-001-442 ii. the city or private entity has the opportunity to add capacity to the proposed project or other facilities serving similar predominantly public purposes. d. Will be owned by the city upon completion, expiration, or termination of the comprehensive agreement and upon payment of the amounts financed. e. Before signing a comprehensive agreement, the city must: i. consider a reasonable finance plan that is consistent with F.S. §255.065(9); ii. the qualifying project cost; iii. revenues by source; iv. available financing; v. major assumptions; vi. internal rate of return on private investments, if governmental funds are assumed in order to deliver a cost-feasible project; and vii. a total cash-flow analysis beginning with the implementation of the project and extending for the term of the comprehensive agreement. (c) Project qualifications and process. The city must ensure that any comprehensive agreement entered into between the city and a private entity, at a minimum, ensures that: a. provision is made for the private entity’s performance and payment of subcontractors, including, but not limited to, surety bonds, letters of credit, parent company guarantees, and lender and equity partner guarantees. For the components of the qualifying project which involve construction performance and payment, bonds are required and are subject to the recordation, notice, suit limitation, and other requirements of F.S. §255.05. i. the most efficient pricing of the security package that provides for the performance and payment of subcontractors. ii. the comprehensive agreement addresses termination upon a material default of the comprehensive agreement. b. After the deadline for submitting proposals has expired, the city shall rank the proposals received in order of preference based on factor that include, but are not limited to, professional qualifications, general business terms, innovative design DocuSign Envelope ID: 3B6AAF81-B19E-48FB-B17A-4BFC391DE350 Page 6 of 11 Ordinance No. 2022-001-442 techniques or cost-reduction terms, and finance plans. The city may then begin negotiations for a comprehensive agreement with the highest-ranked firm. c. The city shall perform an independent analysis of the proposed public-private partnership which demonstrates the cost-effectiveness and overall public benefit before the procurement process is initiated or before the contract is awarded. d. The city may approve of a qualifying project or the design or equipping of a qualifying project if: i. There is a public need for or benefit derived from a project of the type that the private entity proposes as the qualifying project. ii. The estimated cost of the qualifying project is reasonable in relation to similar facilities. iii. The private entity’s plans will result in the timely acquisition, design, construction, improvement, renovation, expansion, equipping, maintenance, or operation of the qualifying project. e. The city may charge a reasonable fee to cover the costs of processing, reviewing, and evaluating the request, including, but not limited to, reasonable attorney fees and fees for financial and technical advisors or consultants and for other necessary advisors or consultants. f. Upon approval of a qualifying project, the city will establish a date for the commencement of activities related to the qualifying project. The city may extend the commencement date. g. Approval of a qualifying project by the city is subject to entering into a comprehensive agreement with the private entity. Sec. 2-833. - Non-qualifying unsolicited proposals An unsolicited proposal for a non-qualifying project may be treated as a qualifying project, as defined by F.S. 255.065, upon an Authorizing Resolution approved by the city council. Prior to approval via an Authorizing Resolution, the city council must find that the requirements of Section 2-832(b) of the City of Miami Gardens Code of Ordinances is met. If such requirements are met, such unsolicited proposal shall be treated as an unsolicited proposal for a qualifying project, pursuant to section 255.065, Florida Statutes. Sec. 2-834.- Interim Agreements The city may enter into interim agreements with the private entity prior to execution of a comprehensive agreement. The interim agreement does not obligate the city to enter into a subsequent comprehensive agreement. The interim agreement is discretionary among the city and the private entity. Such agreement is not a requirement, thus, the city DocuSign Envelope ID: 3B6AAF81-B19E-48FB-B17A-4BFC391DE350 Page 7 of 11 Ordinance No. 2022-001-442 and the private entity may proceed directly to a comprehensive agreement. If an interim agreement is entered into, it must: (a) Authorize the private entity to commence activities for which it may be compensated related to the proposed qualifying project, including, but not limited to, project planning and development, design, environmental analysis and mitigation, survey, other activities concerning any part of the proposed qualifying project, and ascertaining the availability of financing for the proposed facility or facilities. (b) Establish the process and timing of the negotiation of the comprehensive agreement. (c) Contain such other provisions related to an aspect of the development or operation of a qualifying project that the city and the private entity deem appropriate. Sec. 2-835. - Comprehensive Agreements Before developing or operating the qualifying project, the private entity must enter into a comprehensive agreement with the city. The comprehensive agreement must provide for: (a) Delivery of performance and payment bonds, letters of credit, or other security acceptable to the city in connection with the development or operation of the qualifying project in the form and amount satisfactory to the city. For the components of the qualifying project which involve construction, the form and amount of the bonds must comply with F.S. § 255.05. (b) Review of the design for the qualifying project by the city and, if the design conforms to standards acceptable to the city, the approval of the city. This subparagraph does not require the private entity to complete the design of the qualifying project before the execution of the comprehensive agreement. (c) Inspection of the qualifying project by the city to ensure that the private entity’s activities are acceptable to the city in accordance with the comprehensive agreement. (d) Maintenance of a policy of public liability insurance, a copy of which must be filed with the city and accompanied by proofs of coverage, or self-insurance, each in the form and amount satisfactory to the city and reasonably sufficient to ensure coverage of tort liability to the public and employees and to enable the continued operation of the qualifying project. (e) Monitoring by the city of the maintenance practices to be performed by the private entity to ensure that the qualifying project is properly maintained. (f) Periodic filing by the private entity of the appropriate financial statements that pertain to the qualifying project. DocuSign Envelope ID: 3B6AAF81-B19E-48FB-B17A-4BFC391DE350 Page 8 of 11 Ordinance No. 2022-001-442 (g) Procedures that govern the rights and responsibilities of the city and the private entity in the course of the construction and operation of the qualifying project and in the event of the termination of the comprehensive agreement or a material default by the private entity. The procedures must include conditions that govern the assumption of the duties and responsibilities of the private entity by an entity that funded, in whole or part, the qualifying project or by the city, and must provide for the transfer or purchase of property or other interests of the private entity by the city. (h) Fees, lease payments, or service payments. In negotiating user fees, the fees must be the same for persons using the facility under like conditions and must not materially discourage use of the qualifying project. The execution of the comprehensive agreement or a subsequent amendment is conclusive evidence that the fees, lease payments, or service payments provided for in the comprehensive agreement comply with this section. Fees or lease payments established in the comprehensive agreement as a source of revenue may be in addition to, or in lieu of, service payments. (i) Duties of the private entity, including the terms and conditions that the city determines serve the public purpose of this section. Sec. 2-836. – Fees. A private entity that enters into a comprehensive agreement under this section is authorized to impose fees to members of the public for the use of the facility, in accordance with the agreement. The following provisions apply to comprehensive agreements: (a) The city may develop new facilities or increase capacity in existing facilities through a comprehensive agreement with a private entity. (b) The comprehensive agreement must ensure that the facility is properly operated, maintained, or improved in accordance with standards set forth in the comprehensive agreement. (c) The city may lease existing fee-for-use facilities through a comprehensive agreement. (d) Any revenues must be authorized by and applied in the manner set forth in the comprehensive agreement. (e) A negotiated portion of revenues from fee-generating uses may be returned to the city over the life of the comprehensive agreement. Sec. 2-837. - Powers and duties of the private entity DocuSign Envelope ID: 3B6AAF81-B19E-48FB-B17A-4BFC391DE350 Page 9 of 11 Ordinance No. 2022-001-442 Each private facility that is constructed pursuant to this section must comply with the requirements of federal, state, and local laws; state, regional, and local comprehensive plans; the city’s rules, procedures, and standards for facilities; and such other conditions that the city determines to be in the public’s best interest and that are included in the comprehensive agreement. The private entity shall: (a) Develop or operate the qualifying project in a manner that is acceptable to the city in accordance with the provisions of the comprehensive agreement. (b) Maintain, or provide by contract for the maintenance or improvement of, the qualifying project if required by the comprehensive agreement. (c) Cooperate with the city in making best efforts to establish interconnection between the qualifying project and any other facility or infrastructure as requested by the city in accordance with the provisions of the comprehensive agreement. (d) Comply with the comprehensive agreement and any lease or service contract. Sec. 2-838. - Expiration or termination of agreements (a) The city may terminate with cause and without prejudice a comprehensive agreement and may exercise any other rights or remedies that may be available to it in accordance with the provisions of the comprehensive agreement. The full faith and credit of the city may not be pledged to secure the financing of the private entity. (b) The assumption of the development or operation of the qualifying project does not obligate the city to pay any obligation of the private entity from sources other than revenues from the qualifying project unless stated otherwise in the comprehensive agreement. (c) Upon the expiration or termination of a comprehensive agreement, the city may use revenues from the qualifying project to pay current operation and maintenance costs of the qualifying project. (d) If the private entity materially defaults under the comprehensive agreement, the compensation that is otherwise due to the private entity is payable to satisfy all financial obligations to investors and lenders on the qualifying project in the same way that is provided in the comprehensive agreement or any other agreement involving the qualifying project, if the costs of operating and maintaining the qualifying project are paid in the normal course. DocuSign Envelope ID: 3B6AAF81-B19E-48FB-B17A-4BFC391DE350 Page 10 of 11 Ordinance No. 2022-001-442 (e) Revenues in excess of the costs for operation and maintenance costs may be paid to the investors and lenders to satisfy payment obligations under their respective agreements. Section 3. CONFLICT: All ordinances or Code provisions in conflict herewith are hereby repealed. Section 4. SEVERABILITY: If any section, subsection, sentence, clause, phrase or portion of this Ordinance is for any reason held invalid or unconstitutional by any court of competent jurisdiction, such portion shall be deemed a separate, distinct and independent provision and such holding shall not affect the validity of the remaining portions of this Ordinance. Section 5. INCLUSION IN CODE: It is the intention of the City Council of the City of Miami Gardens that the provisions of this Ordinance shall become and be made a part of the Code of Ordinances of the City of Miami Gardens and that the section of this Ordinance may be renumbered or relettered and the word “Ordinance” may be changed to “Chapter,” “Section,” “Article” or such other appropriate word or phrase, the use of which shall accomplish the intentions herein expressed. Section 6. EFFECTIVE DATE: This Ordinance shall become effective immediately upon its final passage. PASSED ON FIRST READING ON THE 8TH DAY OF DECEMBER, 2021. PASSED ON SECOND READING ON THE 12TH DAY OF JANUARY, 2022. PASSED AND ADOPTED BY THE CITY COUNCIL OF THE CITY OF MIAMI GARDENS AT ITS REGULAR MEETING HELD ON JANUARY 12, 2022. ________________________________ RODNEY HARRIS, MAYOR ATTEST: ________________________________ MARIO BATAILLE, CMC, CITY CLERK DocuSign Envelope ID: 3B6AAF81-B19E-48FB-B17A-4BFC391DE350 Page 11 of 11 Ordinance No. 2022-001-442 PREPARED BY: SONJA KNIGHTON DICKENS, CITY ATTORNEY SPONSORED BY: SONJA KNIGHTON DICKENS, ESQ., CITY ATTORNEY AND CAMERON D. BENSON, CITY MANAGER Moved by: Vice Mayor Leon Seconded by: Councilman Stephens VOTE: 7-0 Mayor Harris Yes Vice Mayor Leon Yes Councilwoman Campbell Yes Councilwoman Ighodaro Yes Councilwoman Julien Yes Councilman Stephens, III Yes Councilwoman Wilson Yes DocuSign Envelope ID: 3B6AAF81-B19E-48FB-B17A-4BFC391DE350