New Jersey § 18a:18a-60

§ 18a:18a-60.

a. As used in this section: “ Authority ” means the New Jersey Economic Development Authority established pursuant to section

4 of P.L.1974, c. 80 ( C.34:1B-4 ). “ Bundling ” means the use of a solicitation for multiple projects in one single contract, through

a public-private partnership project delivery method, the result of which restricts

competition. “ Project ” shall have the same meaning as provided in section 3 of P.L.2000, c. 72 ( C.18A:7G-3 ) for school facilities project, and shall include any infrastructure or facility

used or to be used by the public or in support of a public purpose or activity. “ Public-private partnership agreement ” means an agreement entered into by a school district and a private entity pursuant

to this section for the purpose of permitting a private entity to assume full financial

and administrative responsibility for the development, construction, reconstruction,

repair, alteration, improvement, extension, operation, and maintenance of a school

facilities project of, or for the benefit of, the school district. “ School district ” shall have the same meaning as provided in section 3 of P.L.2000, c. 72 ( C.18A:7G-3 ) and includes a local school district, regional school district, or county special

services school district or county vocational school established and operating under

the provisions of Title 18A of the New Jersey Statutes that can demonstrate to the

satisfaction of the Commissioner of Education and the Chief Executive Officer of the

Schools Development Authority that a school facility is necessary due to overcrowding

or is in need of replacement. The term “ school district ” shall include a charter school established under P.L.1995, c. 426 ( C.18A:36A-1 et seq. ) b. (1) A school district may enter into a contract with a private entity, subject

to subsection f. of this section, to be referred to as a public-private partnership

agreement, that permits the private entity to assume full financial and administrative

responsibility for a project of, or for the benefit of, the school district , except that a school district may, by resolution, draw against its capital reserve

account in order to finance a portion of a project for which a school district and

private entity enter into a public-private partnership agreement pursuant to the provisions

of this section . (2) A public-private partnership agreement may include an agreement under which a

school district and a private entity enter into a lease of a revenue-producing public

building, structure, or facility in exchange for up-front or structured financing

by the private entity for the project. Under the lease agreement, the private entity shall be responsible for the management,

operation, and maintenance of the building, structure, or facility. The private entity shall receive some or all, as per the agreement, of the revenue

generated by the building, structure, or facility, and shall operate the building,

structure, or facility in accordance with school district standards. At the end of the lease term, subsequent revenue generated by the building, structure,

or facility, along with management, operation, and maintenance responsibility, shall

revert to the school district. A lease agreement entered into pursuant to this section shall be limited in duration

to a term of not more than 30 years. A lease agreement shall be subject to all applicable provisions of current law governing

leases by a school district not inconsistent with the provisions of this section. (3) Bundling of projects shall be prohibited under this section. c. (1) A private entity that assumes financial and administrative responsibility for

a project pursuant to this section shall not be subject to, unless otherwise set forth

herein, the procurement and contracting requirements of all statutes applicable to

the school district at which the project is completed, including, but not limited

to, the “Public School Contracts Law,” N.J.S.18A:18A-1 et seq. (2) For the purposes of facilitating the financing of a project pursuant to this section,

a public entity may become the owner or lessee of the project or the lessee of the

land, or both, may become the lessee of a building, structure, or facility to which

the school district holds title, may issue indebtedness in accordance with the public

entity's enabling legislation and, notwithstanding any provision of law to the contrary,

shall be empowered to enter into contracts with a private entity and its affiliates

without being subject to the procurement and contracting requirements of any statute

applicable to the public entity provided that the private entity has been selected

by the school district pursuant to a solicitation of proposals or qualifications from

at least two private entities. For the purposes of this subsection, a public entity shall include the New Jersey

Economic Development Authority, and any project undertaken pursuant to this section

of which the authority becomes the owner or lessee, or which is situated on land of

which the authority becomes the lessee, shall be deemed a “project” under “The New

Jersey Economic Development Authority Act,” P.L.1974, c. 80 ( C.34:1B-1 et seq. ). (3) Prior to the commencement of work on a project, the private entity shall establish

a construction account and appoint a third-party financial institution, who shall

be prequalified by the State Treasurer to act as a collateral agent and manage the

construction account. The construction account shall include the funding, financial instruments, or both,

that shall be used to fully capitalize and fund the project, and the collateral agent

shall maintain a full accounting of the funds and instruments in the account. The funds and instruments in the construction account shall be held in trust for

the benefit of the contractor, construction manager, and design-build team involved

in the project. The funds and instruments in the construction account shall not be the property

of the private entity unless all amounts due to the construction account beneficiaries

are paid in full. The construction account shall not be designated for more than one project. d. 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 school district pursuant to this section shall 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

( C.34:11-56.25 et seq. ) and P.L.2005, c. 379 ( C.34:11-56.58 et seq. ). e. (1) All building construction projects under a public-private partnership agreement

entered into pursuant to this section shall contain a project labor agreement. The project labor agreement shall be subject to the provisions of P.L.2002, c. 44 ( C.52:38-1 et 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. The general contractor, construction manager, design-build team, or subcontractor

for a construction project proposed in accordance with this paragraph shall be registered

pursuant to the provisions of P.L.1999, c. 238 ( C.34:11-56.48 et seq. ), and shall be classified by the Division of Property Management and Construction,

or shall be prequalified by the Department of Transportation, as appropriate, to perform

work on a public-private partnership project. (2) All projects proposed in accordance with this section shall be submitted to the

State Treasurer, in consultation with the Department of Education, Schools Development

Authority, and the New Jersey Economic Development Authority for a review and approval

in accordance with subsection f. of this section prior to the execution of the public-private

partnership agreement and, when practicable, are encouraged to 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. (3) The general contractor, construction manager, or design-build team shall be required

to 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.2A:44-143 et seq. (4) Prior to being submitted to the State Treasurer for review and approval, all projects

proposed in accordance with this section shall be subject to a public hearing, the

record of which shall have been kept open for a period of seven days following the

conclusion of the hearing, after the ranking of proposals takes place pursuant to

paragraph (5) of subsection j. of this section. The school district shall provide notice of the public hearing no less than 14 days

prior to the date of the hearing. The notice shall prominently state the purpose and nature of the proposed project,

and shall be published on the official Internet website of the school district and

in at least one or more newspapers with Statewide circulation. (5) Prior to entering into a public-private partnership, the school district must

determine: (i) the benefits to be realized by the project, (ii) the cost of the project

if it is developed by the public sector supported by comparisons to comparable projects,

(iii) the maximum public contribution that the school district will allow under the

public-private partnership, (iv) a comparison of the financial and non-financial benefits

of the public-private partnership compared to other options including the public sector

option, (v) a list of risks, liabilities and responsibilities to be transferred to

the private entity and those to be retained by the school district, and (vi) if the

project has a high, medium or low level of project delivery risk and how the public

is protected from these risks. (6) Prior to entering into a public-private partnership, the school district at a

public hearing shall find that the project is in the best interest of the public by

finding that (i) it will cost less than the public sector option, or if it costs more

there are factors that warrant the additional expense , (ii) there is a public need for the project and the project is consistent with existing

long-term plans, (iii) there are specific significant benefits to the project, (iv)

there are specific significant benefits to using the public-private partnership instead

of other options including No-Build , (v) the private development will result in timely and efficient development and operation , and (vi) the risks, liabilities and responsibilities transferred to the private entity

provide sufficient benefits to warrant not using other means of procurement. f. (1) All projects proposed in accordance with this section shall be submitted to

the State Treasurer for review and approval, which shall be conducted in consultation

with the Commissioner of the Department of Education and the Chief Executive Officer

of the Schools Development Authority. The Commissioner of the Department of Education shall determine if a project is

subject to voter approval pursuant to N.J.S.18A:24-10 . If a project is subject to voter approval, such approval is required prior to progressing

thru the procurement process. The projects are encouraged, when practicable, to adhere to the green building manual

prepared by the Commissioner of Community Affairs pursuant to section 1 of P.L.2007, c. 132 ( C.52:27D-130.6 ). (2) All projects proposed in accordance with this section that have a transportation

component or impact the transportation infrastructure shall be submitted to the Department

of Transportation. The State Treasurer shall consult with the Department of Transportation in making

its final determination. (3)(a) In order for an application to be complete and considered by the State Treasurer,

the application shall include, but not be limited to: (i) a full description of the

proposed public-private partnership agreement between the school district and the

private developer, including all information obtained by and findings of the school

district pursuant to paragraphs (4) and (5) of subsection (e) of this section; (ii)

a full description of the project, including a description of any agreement for the

lease of a revenue-producing facility related to the project; (iii) the estimated

costs and financial documentation for the project showing the underlying financial

models and assumptions that determined the estimated costs. The financial documentation must include 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; (iv) a timetable for completion of the construction of the project; (v)

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; (vi)

a record of the public hearing held pursuant to paragraph (4) of subsection e. of

this section, which shall have been kept open for a period of seven days following

the conclusion of the hearing; (vii) any other requirements that the State Treasurer

deems appropriate or necessary. The application shall also include a resolution by the school district's governing

body of its intent to enter into a public-private partnership agreement pursuant to

this section. (b) As part of the estimated costs and financial documentation for the project, the

application shall contain a long-range maintenance plan and a long-range maintenance

bond and shall specify the expenditures that qualify as an appropriate investment

in maintenance. The long-range maintenance plan shall be approved by the State Treasurer pursuant

to regulations promulgated by the State Treasurer that reflect national building maintenance

standards and other appropriate building maintenance benchmarks. (4) The State Treasurer, in consultation with the authority, the Commissioner of the

Department of Education, and the Chief Executive Officer of the Schools Development

Authority, shall review all completed applications, and request additional information

as is needed to make a complete assessment of the project. No public-private partnership agreement shall be executed until approval has been

granted by the State Treasurer. Prior to a final decision by the State Treasurer on the application, the authority,

the Department of Education, and the Schools Development Authority shall be afforded

the opportunity to provide comments on the application that they deem appropriate,

and the State Treasurer shall consider any comments submitted by the authority, the

Department of Education, and the Schools Development Authority with respect to the

application. The State Treasurer will find that: (i) the school district's assumptions regarding

the project's scope, its benefits, its risks and the cost of the public sector option

were fully and reasonably developed (ii) the design of the project is feasible; (iii)

the experience and qualifications of the private entity; (iv) the financial plan

is sound; (v) the long-range maintenance plan is adequate to protect the investment;

(vi) the project is in the best interest of the public, using the criteria in paragraph

(6) of subsection e. of this section; (vii) a resolution by the school district's

governing body of its intent to enter into a public-private partnership agreement

for the project has been received; and (viii) the term sheet for any proposed procurement

contains all necessary elements. (5) The State Treasurer, in consultation with the Commissioner of the Department of

Education and Chief Executive Officer of the Schools Development Authority, may promulgate

any rules and regulations necessary to implement this subsection, including, but not

limited to, provisions for fees to cover administrative costs, and for the determination

of minimum school district standards for the operation of the project, and for the

qualification for professional services, construction contracting, and other relevant

qualifications. g. A project with an expenditure of under $50 million developed under a public-private

partnership agreement shall 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% of the project's financing

costs. h. The power of eminent domain shall not be delegated to any private entity under

the provisions of P.L.2018, c. 90 ( C.40A:11-52 et al.); however, a school district may dedicate any property interest, including

improvements, and tangible personal property of the school district for public use

in a qualifying project if the school district finds that so doing will serve the

public purpose of the project by minimizing the cost of the project to the school

district or reducing the delivery time of a project. i. Any public-private partnership agreement, if appropriate, shall include provisions

affirming that the agreement and any work performed under the agreement are subject

to the provisions of the “Construction Industry Independent Contractor Act,” P.L.2007, c. 114 ( C.34:20-1 et seq. ). Any public-private partnership agreement will also include, at a minimum: (i) the

term of the agreement, (ii) the total project cost, (iii) a completion date guarantee,

(iv) a provision for damages if the private entity fails to meet the completion date , and (v) a maximum rate of return to the private entity and a provision for the distribution

of excess earnings to the local government unit or to the private party for debt reduction. j. (1) A private entity seeking to enter into a public-private partnership agreement

with the school district shall be qualified by the school district as part of the

procurement process, provided such process ensures that the private entity and its

subcontractors and consultants, where relevant, meet at least the minimum qualifications

standards promulgated by the State Treasurer, in consultation with the New Jersey

Economic Development Authority, Department of Education, Schools Development Authority,

and such other school district standards for qualification for professional services,

construction contracting, and other qualifications applicable to the project, prior

to submitting a proposal under the procurement process. (2) A request for qualifications for a public-private partnership agreement shall

be advertised at least 45 days prior to the anticipated date of receipt. The advertisement of the request for qualifications shall be published on the official

Internet website of the school district and at least one or more newspapers with Statewide

circulation. (3) After the school district determines the qualified respondents utilizing, at minimum,

the qualification standards promulgated by the State Treasurer, the school district

shall issue a request for proposals to each qualified respondent no less than 45 days

prior to the date established for submission of the proposals. The request for proposals shall include relevant technical submissions, documents,

and the evaluation criteria to be used in the selection of the designated respondent. The evaluation criteria shall be, at minimum, criteria promulgated by the State

Treasurer, in consultation with the New Jersey Economic Development Authority, Department

of Education, and Schools Development Authority. (4) The school district may accept unsolicited proposals from private entities for

public-private partnership agreements. If the school district receives an unsolicited proposal and determines that it meets

the standards of this section, the school district shall publish a notice of the receipt

of the proposal on the Internet site of the school district and through advertisement

in at least one or more newspapers with Statewide circulation. The school district shall also provide notice of the proposal at its next scheduled

public meeting and to the State Treasurer. To qualify as an unsolicited proposal, the unsolicited proposal must at a minimum

include a description of the public-private project, the estimated construction and

life-cycle costs, a timeline for development, proposed plan of financing, including

projected revenues, public or private, debt, equity investment, description of how

the project meets needs identified in existing plans, the permits and approvals needed

to develop the project from local, state and federal agencies and a projected schedule

for obtaining such permits and approvals, a statement of risks, liabilities and responsibilities

to be assumed by the private entity. The notice shall provide that the school district will accept, for 120 days after

the initial date of publication, proposals meeting the standards of this section from

other private entities for eligible projects that satisfy the same basic purpose and

need. A copy of the notice shall be mailed to each municipal and county local government

body in the geographic area affected by the proposal. (5) After the proposal or proposals have been received, and any public notification

period has expired, the school district shall rank the proposals in order of preference. In ranking the proposals, the school district shall rely upon, at minimum, the evaluation

criteria promulgated by the State Treasurer, in consultation with the New Jersey Economic

Development Authority, Department of Education, and Schools Development Authority. In addition, the local school district may consider factors that include, but may

not be limited to, professional qualifications, general business terms, innovative

engineering, architectural services, or cost-reduction terms, finance plans, and the

need for school district funds to deliver the project and discharge the agreement. The private entity selected shall comply with all laws and regulations required

by the State government entity, including but not limited to section 1 of P.L.2001, c. 134 ( C.52:32-44 ), sections 2 through 8 of P.L.1975, c. 127 ( C.10:5-32 to 38 ), section 1 of P.L.1977, c. 33 ( C.52:25-24.2 ), P.L.2005, c. 51 ( C.19:44A-20.13 et al.); P.L.2005, c. 271 ( C.40A:11-51 et al.), Executive Order No. 117 of 2008, Executive Order No. 118 of 2008, Executive

Order No. 189, prior to executing the public private partnership agreement. If only one proposal is received, the school district shall negotiate in good faith

and, if not satisfied with the results of the negotiations, the school district may,

at its sole discretion, terminate negotiations. (6) The school district may require, upon receipt of one or more proposals, that the

private entity assume responsibility for all costs incurred by the school district

before execution of the public-private partnership agreement, including costs of retaining

independent experts to review, analyze, and advise the school district with respect

to the proposal. (7) The school district shall set aside one percent of each project and remit it the

Public-Private Partnership Review fund established pursuant to section 8 of P.L.2018, c. 90 ( C.52:18A-260 ), for purposes of plan review and analysis required under the bill. (8) Nothing in this section shall be construed as or deemed a waiver of the sovereign

immunity of the State, the local government unit or an affected locality or public

entity or any officer or employee thereof with respect to the participation in or

approval of all or any part of the public-private project.