New Jersey § 18a:64-85

§ 18a:64-85.

a. (1) A State college or county college 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 the on-campus or off-campus construction, reconstruction, repair, alteration, improvement, extension, management,

or operation of a building, structure, or facility of, or for the benefit of, the

institution, provided that the project is financed in whole or in part by the private entity and that the State or institution of higher education, as applicable,

retains full ownership of the land upon which the project is completed. (2) A public-private partnership agreement may include an agreement under which a

State or county college and the private entity enter into a lease of a dormitory or other revenue-producing facility to which the college holds title,

in exchange for up-front or structured financing by the private entity for the construction

of classrooms, laboratories, or other academic or research buildings. Under the lease agreement, the college shall continue to hold title to the facility,

and the private entity shall be responsible for the management, operation, and maintenance

of the facility. The private entity shall receive some or all, as per the agreement, of the revenue

generated by the facility and shall operate the facility in accordance with college

standards. A lease agreement shall not affect the status or employment rights of college employees

who are assigned to, or provide services to, the leased facility. At the end of the lease term, subsequent revenue generated by the facility, along

with management, operation, and maintenance responsibility, shall revert to the college. 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 State or county college not inconsistent with the provisions of this section. For the purposes of this section, “ revenue-producing ” shall include leaseback arrangements. (3) Bundling of projects shall be prohibited. As used in this paragraph, “ 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. b. (1) A private entity that assumes full financial and administrative responsibility for a project pursuant to subsection

a. of this section shall not be subject , unless otherwise set forth herein, to the procurement and contracting requirements of all statutes applicable to the

institution of higher education at which the project is completed, including, but

not limited to, the “State College Contracts Law,” P.L.1986, c. 43 ( C.18A:64-52 et seq. ), and the “County College Contracts Law,” P.L.1982, c. 189 ( C.18A:64A-25.1 et seq. ). Any capital improvements and conveyance of personal property owned by the State shall

not be subject to the approval of the State House Commission pursuant to R.S.52:20-1 et seq. , or the State Legislature, provided the State Treasurer approves of such transfer

as being necessary to meet the goals of this act, P.L.2018, c. 90 ( C.40A:11-52 et al.). Notwithstanding any provision of law to the contrary, any State or county college or public research university shall be empowered to enter into contracts with a private entity and its affiliates , unless otherwise set forth herein, without being subject to the procurement and contracting requirements of any statute

applicable to the public entity or institution provided that the private entity has been selected by the institution of higher education

pursuant to a solicitation of proposals or qualifications from at least two private entities, or it has received an unsolicited proposal and

followed the procedure set forth in paragraph (2) of subsection k. of this section . For the purposes of this section, a public entity shall include the New Jersey Economic

Development Authority or the New Jersey Educational Facilities Authority , and any project undertaken pursuant to subsection a. of this section of which the

authority becomes the owner or lessee, or which is situated on land of which either of those authorities 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. ) or the “New Jersey educational facilities authority law,” N.J.S.18A:72A-1 et seq. , as appropriate . (2) As the carrying out of any project described pursuant to this section constitutes

the performance of an essential public function, all projects having the primary stated purpose of furthering the educational purposes of the institution undertaken pursuant to this section, provided

it is owned by or leased to a public entity , any State or county college or public research university , non-profit business entity, foreign or domestic, or a business entity wholly owned

by such non-profit business entity, shall at all times be exempt from property taxation

and special assessments of the State, or any municipality, or other political subdivision

of the State and, notwithstanding the provisions of section 15 of P.L.1974, c. 80

( C.34:1B-15 ), section 2 of P.L.1977, c. 272 ( C.54:4-2.2b ), or any other section of law to the contrary, shall not be required to make payments

in lieu of taxes. The land upon which the project is located shall also at all times be exempt from

property taxation. Further, the project and land upon which the project is located shall not be subject

to the provisions of section 1 of P.L.1984, c. 176 ( C.54:4-1.10 ) regarding the tax liability of private parties conducting for profit activities

on tax exempt land, or section 1 of P.L.1949, c. 177 ( C.54:4-2.3 ) regarding the taxation of leasehold interests in exempt property that are held by

nonexempt parties. (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 to 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. c. 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 pursuant to subsection a. of

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. ). d. (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. Further, 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, New Jersey Transit,

or the New Jersey Turnpike Authority, as appropriate, to perform work on a public-private partnership higher education project. (2) All building projects proposed in accordance with this section shall be submitted to the State Treasurer, in consultation with the Secretary of Higher Education, and to the

New Jersey Educational Facilities Authority, as to projects to be financed through

the New Jersey Educational Facilities Authority, for review and approval in accordance with subsection f. of this section prior to the execution of the public-private

partnership agreement in accordance with subsection k. of this section 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 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 . e. (Deleted by amendment, P.L.2018, c. 90 ) f. (1) Prior to entering into a public-private partnership, the State or county college

shall 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 State or county college

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 State or county

college; 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. (2) Prior to entering into a public-private partnership, the State or county college

at a public meeting 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. (3) All projects proposed in accordance with this section shall be submitted to the

State Treasurer, in consultation with the Secretary of Higher Education, and the New

Jersey Educational Facilities Authority is to be consulted if the project is to be

financed through the New Jersey Educational Facilities Authority, for review and approval. 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 ). (4) All projects proposed in accordance with this section that have a transportation

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

Treasurer, in consultation with the Commissioner of the Department of Transportation

for review and approval. (5)(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 State or county college

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

State or county college pursuant to paragraphs (1) and (2) of this subsection; (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 shall 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 the project, along with evidence of

the public benefit in advancing the project as a public-private partnership; (vi)

a record of the public hearing; and (vii) any other requirements that the State Treasurer

deems appropriate or necessary. The application shall also include a resolution by the governing body of the State

or county college 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. All contracts to implement a long-range maintenance plan pursuant to this paragraph

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. (6) The State Treasurer, in consultation with the Secretary of Higher Education and

the New Jersey Educational Facilities Authority, shall review all completed applications,

and request additional information as is needed to make a complete assessment of the

project. No project shall commence the procurement process or negotiate a contract for an

unsolicited proposal until approval has been granted by the State Treasurer. The State Treasurer shall find that: the criteria for assessing the project shall

include, but may not be limited to: (i) the State's or county college'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 are adequate;

(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 (2) of this subsection f.; and (vii) a resolution

by the governing body of the State or county college 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. Before the State or county college enters into a public-private partnership agreement,

the project shall be submitted to the State Treasurer for final approval, provided,

however, that the State Treasurer shall retain the right to revoke approval if the

project has substantially deviated from the plan submitted pursuant to paragraph (2)

of this subsection. (7) The State Treasurer, in consultation with the Secretary of Higher Education, the

New Jersey Economic Development Authority and the New Jersey Educational Facilities

Authority, as to projects to be financed through the New Jersey Educational Facilities

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 State or county college standards for the operation

of the project, and for the qualification for professional services, construction

contracting, and other relevant qualifications. g. (Deleted by amendment, P.L.2018, c. 90 ) h. 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. i. 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 State or county college may dedicate any property interest,

including improvements, and tangible personal property of the State or county college

for public use in a qualifying project if the State or county college finds that so

doing will serve the public purpose of the project by minimizing the cost of the project

to the State or county college or reducing the delivery time of a project. j. 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 shall 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. k. (1) A private entity seeking to enter into a public-private partnership agreement

with the State or county college shall be qualified by the State or county college

as part of the procurement process, provided such process ensures that the private

entity meets at least the minimum State or county college 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 State or county college and at least one or more newspapers

with Statewide circulation. (3) After the State or county college determines the qualified respondents utilizing,

at minimum, the qualification standards promulgated by the State Treasurer, the State

or county college shall issue a request for proposals to each qualified respondent

no less than 90 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. (4) The State or county college may accept unsolicited proposals from private entities

for public-private partnership agreements. If the State or county college receives an unsolicited proposal and determines that

it meets the standards of this section, the State or county college shall publish

a notice of the receipt of the proposal on the Internet site of the State or county

college, or through at least one or more newspapers with Statewide circulation, and

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 shall 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 or availability payments,

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. If a notice is published exclusively in newspapers, the notice shall appear in at

least one or more newspapers with Statewide circulation where the proposed project

is to be located. The notice shall provide that the State or county college 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 State or county college shall rank the proposals in order

of preference. In ranking the proposals, the State or county college 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 State or county college 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 State or county college shall negotiate in

good faith and, if not satisfied with the results of the negotiations, the State or

county college may, at its sole discretion, terminate negotiations. (6) The State or county college may require that the private entity assume responsibility

for all costs incurred by the State or county college before execution of the public-private

partnership agreement, including costs of retaining independent experts to review,

analyze, and advise the State or county college with respect to the proposal. (7) Stipends may be used on public-private partnership projects when there is a substantial

opportunity for innovation and the costs for developing a proposal are significant. The State or county college may elect to pay unsuccessful proposers for the work

product they submit with their proposal in response to a request for proposals. The use by the State or county college of any design element contained in an unsuccessful

proposal shall be at the sole risk and discretion of the State or county college and

shall not confer liability on the recipient of the stipulated stipend amount. After payment of the stipulated stipend amount, the State or county college and

the unsuccessful proposer shall jointly own the rights to, and may make use of any

work product contained in the proposal, including the technologies, techniques, methods,

processes, ideas, and information contained in the proposal, project design, and project

financial plan. The use by the unsuccessful proposer of any part of the work product contained in

the proposal shall be at the sole risk of the unsuccessful proposer and shall not

confer liability on the State or county college. (8) The State or county college shall set aside one percent of each project and remit

it to the Public Private Partnership Review fund established pursuant to P.L.2018, c. 90 ( C.40A:11-52 et al.), for purposes of plan review and analysis required under the bill. (9) Nothing in this section shall be construed as or deemed a waiver of the sovereign

immunity of the State, the State or county college, 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.